source: Caselaw Access Project

author:
Callahan, J.
      Glass, J., Arthur H. Healey, J.,

license: Public Domain

text:
    John Franklin v. Robert Berger et al.
    (13450)
    Healey, Callahan, Glass, Covello and Hull, Js.
    Argued January 12
    decision released June 20, 1989

      Carl J. Sehuman, assistant attorney general, with whom were William J. McCullough, assistant attorney general, and, on the brief, Clarine Nardi Riddle, acting attorney general, for the appellant (respondent).

      Allison Rutland Soulen, certified legal intern, with whom were Miriam Berkman and, on the brief, Mary

      McCarthy, Stephen Wizner, J. L. Pottenger, Jr., Robert A. Solomon and Shelley Geballe, for the appellee (petitioner).

      Steven M. Sellers, assistant state’s attorney, filed a brief for the chief state’s attorney as amicus curiae.
   Callahan, J.

Certification was granted in this case limited to the question: “Did the state violate the guarantees of equal protection contained in the Connecticut and United States constitutions by declining to credit pretrial jail time against the length of an insanity acquittee’s commitment to a mental hospital?” Franklin v. Berger, 208 Conn. 816, 546 A.2d 282 (1988). The Appellate Court answered this question in the affirmative. Franklin v. Berger, 15 Conn. App. 74, 544 A.2d 650 (1988). We disagree.

The facts relevant to this appeal are not in dispute and have been set forth in the opinion of the Appellate Court; id.; but can be briefly summarized as follows. On March 5, 1976, the petitioner was arrested and charged with manslaughter in the first degree in violation of General Statutes § 53a-55. Although his bail, initially set at $100,000, was later reduced to $50,000, the petitioner was unable to post a bond and was confined in jail for 293 days prior to trial. In addition, he spent 378 days in a mental hospital while his competency to stand trial was determined. Id.

On January 5, 1978, a criminal court adjudged the petitioner not guilty by reason of insanity. Pursuant to General Statutes (Rev. to 1977) § 53a-47 (repealed and replaced by General Statutes § 17-257), the petitioner was sent to Norwich Hospital for a psychiatric examination. On April 27, 1978, the trial court found the petitioner to be a danger to himself or others and ordered him committed to a mental institution for a term of ten years pursuant to General Statutes (Rev. to 1977) § 53a-47 (b). See General Statutes § 17-257c (e) (1) (A). Thereafter, the state declined to credit the petitioner’s pretrial jail time against the maximum term of his commitment set by the court.

On March 24,1987, the petitioner filed a petition for a writ of habeas corpus alleging that the refusal to grant him credit for his pretrial jail time was violative of the equal protection guarantees of the federal and state constitutions. The habeas court denied his petition finding no equal protection violation. On appeal,* ** the Appellate Court set aside the judgment of the habeas court and held that the state’s practice of denying jail time credits to insanity acquittees violated the petitioner’s equal protection rights. Franklin v. Berger, 15 Conn. App. 74, 544 A.2d 650 (1988).

At this point we note that “the concept of equal protection [under both the state and federal constitutions 6] has been traditionally viewed as requiring the uniform treatment of persons standing in the same relation to the governmental action questioned or challenged.” Reynolds v. Sims, 377 U.S. 533, 84 S. Ct. 1362, 12 L. Ed. 2d 506 (1964); Cleburne v. Cleburne Living Cen ter, Inc., 473 U.S. 432, 105 S. Ct. 3249, 87 L. Ed. 2d 313 (1985); Daily v. New Britain Machine Co., 200 Conn. 562, 578, 512 A. 2d 893 (1986). The “equal protection clause does not require absolute equality or precisely equal advantages.” Ross v. Moffitt, 417 U.S. 600, 94 S. Ct. 2437, 41 L. Ed. 2d 341 (1974); Daily v. New Britain Machine Co., supra, 577-78. Rather, a state may make classifications when enacting or carrying out legislation, but in order to satisfy the equal protection clause the classifications made must be based on some reasonable ground. Ross v. Moffitt, supra; Magoun v. Illinois Trust & Savings Bank, 170 U.S. 283,18 S. Ct. 594, 42 L. Ed. 1037 (1898); Daily v. New Britain Machine Co., supra; State v. Reed, 192 Conn. 520, 531, 473 A. 2d 775 (1984). To determine whether a particular classification violates the guarantees of equal protection, the court must consider “the character of the classification; the individual interests affected by the classification; and the governmental interests asserted in support of the classification.” Dunn v. Blumstein, 405 U.S. 330, 335, 92 S. Ct. 995, 31 L. Ed. 2d 274 (1972). Where the classification impinges upon a fundamental right or impacts upon an “inherently suspect” group, it will be subjected to strict scrutiny and will be set aside unless it is justified by a compelling state interest. Id., 342; Bruno v. Civil Service Commission, 192 Conn. 335, 345, 472 A.2d 328 (1984); Laden v. Warden, 169 Conn. 540, 542, 363 A. 2d 1063 (1975). On the other hand, where the classification at issue neither impinges upon a fundamental right nor affects a suspect group “it will withstand constitutional attack if the distinction is founded on a rational basis.” Laden v. Warden, supra, 543; see also McGinnis v. Royster, 410 U.S. 263, 270, 93 S. Ct. 1055, 35 L. Ed. 2d 282 (1972); Dandridge v. Williams, 397 U.S. 471, 485, 90 S. Ct. 1153, 25 L. Ed. 2d 491 (1970).

To implicate the equal protection clauses under the state and federal constitutions, therefore, it is necessary that the state statute in question, either on its face or in practice, treat persons standing in the same relation to it differently. The petitioner in the instant case argues that by refusing to credit the. time he spent in jail prior to his trial against the fixed maximum term of his commitment, the state is treating wealthy and poor insanity acquittees differently. Based on the premise that all acquittees are discharged at the expiration of the fixed maximum term of confinement set by the court at the commencement of commitment to a mental hospital under § 17-257c (e) (1) (A), the petitioner maintains that indigent acquittees who are held prior to trial because they are not able to afford bail will be confined for the full duration of the fixed maximum term in addition to the time they spend confined in jail prior to their trial, whereas those acquittees who are able to avoid confinement prior to their trial because they can afford bail will be confined only for the duration of the fixed maximum term set by the court. According to the petitioner, this alleged classification based on wealth that affects his fundamental liberty interest cannot be justified by a compelling state interest and, therefore, violates his guarantees of equal protection of the laws. A review of the statutory framework reveals, however, that the petitioner’s reliance on the fixed maximum term as a measuring point for calculating an insanity acquittee’s date of discharge from confinement is misplaced. When § 17-257a et seq. is viewed as a whole, it is clear that the discharge date of insanity acquittees cannot be calculated in days, but rather, is indeterminate, and dependent on the acquit-tee’s ability to prove that he is no longer a danger to himself or others. This being so, the state’s denial of jail time credits to indigent acquittees such as the petitioner does not result in disparate treatment of wealthy and indigent acquittees and, therefore, the equal protection clauses of the state and federal constitutions have not been violated.

General Statutes §§ 17-257a through 17-257w govern the treatment of persons found not guilty by reason of mental disease or defect pursuant to General Statutes § 53a-13.* ***** Under § 17-257c (a), a person acquitted under § 53a-13 is automatically, upon a verdict, committed by the court to the custody of the commissioner of mental health for initial confinement and examination. After a psychiatric examination in a state hospital; General Statutes § 17-257c (b); the court is required to hold a hearing in order to “make a finding as to the mental condition of the acquittee.” General Statutes § 17-257c (e). On the basis of its findings and, “considering that its primary concern is the protection of society,” the court, under § 17-257c (e), has two options. “If the court finds that the acquittee is a person who should be confined, the court shall order the acquittee committed to the jurisdiction of the board and confined in a hospital for mental illness for custody, care and treatment pending a hearing before the board [to review the status of the acquittee].” General Statutes § 17-257c (e) (1). If confined, “the court shall fix a maximum term of commitment, not to exceed the maximum sentence that could have been imposed if the acquittee had been convicted of the offense.” General Statutes § 17-257c (e) (1) (A). At this initial hearing, the court may also determine that based on its findings “the acquittee is a person who should be discharged” and, if so, order the acquittee’s discharge. General Statutes § 17-257c (e) (2). The acquittee has the “burden of proving by a preponderance of the evidence that he is a person who should be discharged.” General Statutes § 17-257c (f).

If the acquittee is confined, he is under the sole jurisdiction of the psychiatric security review board (board). General Statutes § 17-257c (h). Although the statute states that the acquittee “shall be immediately discharged at the expiration of the maximum term of commitment”; General Statutes § 17-257c (h); he may be confined for either more or less time than that originally set by the court under § 17-257c (e) (1) (A), depending on his dangerousness to himself or others. The acquittee will be discharged before the end of the term set by the court if, after periodic status review hearings that are statutorily mandated during the term of the acquittee’s commitment, the board determines that the acquittee is a “person who should be discharged”* and makes application to the court for the discharge of the acquittee from confinement under General Statutes § 17-257n (a). The acquittee may, however, also be confined beyond the maximum term originally set by the court if, at least ninety days prior to the expiration of said term, the state’s attorney determines that the acquittee’s discharge would “constitute a danger to himself or others” and petitions the court for an order of continued commitment. General Statutes § 17-257n (c). In the case of either an application for discharge from custody or a petition for continued commitment, the court is required to conduct a hearing at which it must “make a finding as to the mental condition of the acquittee and, considering that its primary concern is the protection of society,” determine whether the acquittee is a person who should be discharged. General Statutes § 17-257n (g); see also General Statutes § 17-257n (d) and (e).

Under § 17-257n, therefore, an acquittee will not be released from confinement until he is no longer a danger to himself or others, regardless of the maximum term originally set by the court under § 17-257c (e) (1) (A). Our interpretation of § 17-257n is supported by its legislative history. Discussing the discharge of insanity acquittees from confinement, Senator Richard B. Johnston stated that “an acquittee might only be finally discharged upon application to the Superior Court, and acting only on the recommendation of the Psychiatric Review Board. I think this is an important piece of legislation, in that I believe the public would find this as a protection of public interest, and it would enhance the public’s confidence in the fact that dangerous, or potentially dangerous mentally ill persons are not, and would not, be discharged in society.” (Emphasis added.) 28 S. Proc., Pt. 15, 1985 Sess., p. 4913.

The date of discharge of an acquittee from confinement is, therefore, not calculated by counting days as if the acquittee were sentenced to prison, but rather, is indeterminate, being totally dependant on the acquit-tee’s personal mental health. Since the fixed maximum term set by the court does not determine the date an acquittee will be discharged from confinement, the petitioner’s argument that the refusal of the state to credit his jail time against the fixed maximum term creates distinctions in the calculation of confinement time based on wealth is not valid. Subtracting an indigent acquit-tee’s pretrial jail time from the fixed maximum term will not secure his discharge from confinement any sooner than if he were not credited with jail time. Jail time credit is irrelevant in calculating the release of an insanity acquittee because he is confined or released based on his dangerousness. There is, therefore, no difference in the treatment of wealthy and indigent acquittees under § 17-257n. The discharge of all insanity acquittees from confinement, rich or poor, is based on their ability to prove that they are no longer a danger to themselves or others, not on a lapse of time. General Statutes § 17-257n (f).

In addition to arguing that the fixed maximum term set by the court at the commencement of an acquittee’s commitment is significant in calculating his discharge date, the petitioner maintains that the expiration of said term is important because it shifts the burden to prove dangerousness under § 17-257n (f). The petitioner argues that while the acquittee has the burden to prove that he is not a danger to himself or others and that he should be discharged prior to the expiration of the fixed maximum term set by the court, he claims that the burden shifts to the state to prove that he should be retained in confinement after the expiration of the term set by the court. He contends, therefore, that the failure to reduce an indigent acquittee’s fixed maximum term with his pretrial jail time causes the acquit-tee to be confined for a longer period of time prior to the shifting of the burden of proof than wealthier acquittees who make bail. We do not agree.

General Statutes (Rev. to 1987) § 17-257n (f), which discusses the need for a hearing prior to a court ruling on all applications for discharge or petitions for continued confinement, states that “the acquittee or the board when applying for an order of discharge, shall have the burden of proving by a preponderance of the evidence that the acquittee is a person who should be discharged.” Although § 17-257n (f) appears to be silent on the issue of who bears the burden of proof at hearings for continued commitment, amendments were made to that section in 1987 which place the burden on the acquittee to prove that he is a person who should be discharged at a hearing on an application of discharge and at a hearing on a petition for continued commitment. Public Acts 1987, No. 87-486. The 1987 amendment eliminated the language “when applying for an order of discharge” from § 17-257n (f), and the statute now reads: “After receipt of the board’s report and separate examination reports, the court shall promptly commence a hearing on the recommendation or application for discharge or petition for continued commitment. At the hearing, the acquittee shall have the burden of proving by a preponderance of the evidence that the acquittee is a person who should be discharged.” (Emphasis added.) While the 1987 amendment is not controlling in this case, in our opinion the amendment was not intended by the legislature to change the existing law, but rather was meant to clarify it; see 30 H.R. Proc., Pt. 28, 1987 Sess., pp. 10, 183—90; and, therefore, “the amending language ‘ “must be accepted as the legislative declaration of the meaning of the [pre-amended] act.” Tax Commissioner v. Estate of Bissell, 173 Conn. 232, 246, 377 A.2d 305 (1977); see Sutherland, Statutory Construction (4th Ed.) §§ 22.31, 22.35.’ Lee v. Board of Education, 181 Conn. 69, 75, 434 A.2d 333 (1980); see also Circle Lanes of Fairfield, Inc. v. Fay, 195 Conn. 534, 540, 489 A.2d 363 (1985).” Shelby Mutual Ins. Co. v. Della Ghelfa, 200 Conn. 630, 640-41, 513 A. 2d 52 (1986). Accordingly, in light of the 1987 amendment to § 17-257n (f), the acquittee bears the burden to prove that he is no longer a danger to himself or others when seeking discharge before the expiration of the fixed maximum term and also when contesting a petition by the state seeking continued confinement beyond the fixed maximum term. There is, therefore, no shifting of the burden of proof brought about by the petition for continued- confinement at the expiration of an insanity acquittee’s maximum term. The burden remains on the acquittee, either way, to prove that he is not a danger to himself or others before he may be discharged. There is, therefore, nothing that distinguishes insanity acquittees who are unable to make bail from those who are able to make bail.

Accordingly, because confinement of all acquittees under § 17-257 et seq. is based on dangerousness, the state’s refusal to credit the petitioner’s pretrial jail time against the fixed maximum term set by the court does not cause him to be confined for a longer period of time than acquittees who were not confined prior to trial because they were able to-post a bond. Since the statute treats all acquittees the same, the equal protection clause is not implicated. State ex rel. Francis v. Resweber, 329 U.S. 459, 465, 67 S. Ct. 374, 91 L. Ed. 422 (1947) (if a “law applies to all alike, the requirements of ‘equal protection [of the laws]’ are met.”)

The judgment of the Appellate Court is reversed.

In this opinion Covello and Hull, Js., concurred.

Glass, J.,

concurring. Although I agree with the result, I disagree with the majority’s conclusion that, under General Statutes (Rev. to 1987) § 17-257n (f), “the acquittee bears the burden to prove that he is no longer a danger to himself or others when seeking discharge before the expiration of the fixed maximum term [of commitment] and also when contesting a petition by the state seeking continued confinement beyond the fixed maximum term.”

Section 17-257n (f), as revised to 1987, provides in full: “After receipt of the board’s report and any separate examination reports, the court shall promptly commence a hearing on the application for discharge or petition for continued commitment. At the hearing, the acquittee or the board when applying for an order of discharge, shall have the burden of proving by a preponderance of the evidence that the acquittee is a person who should be discharged.” (Emphasis added.)

The construction given by the majority is, I believe, at variance with the language of § 17-257n. By its express terms, subsection (f) fixes the burden of proof on the acquittee or the board only when discharge is sought prior to the expiration of the maximum term. It is silent with regard to the burden of proof on the state’s attorney’s application for continued confinement. It is a well settled principle of statutory construction that the expression of one thing is the exclusion of the other. Thus, subsection (f)’s limitation to applications for discharge would appear to express the intent that the state’s attorney bears the burden of proving the acquittee’s continued dangerousness when petitioning for a commitment beyond the maximum term. Further, “one seeking relief bears the burden of demonstrating that he is entitled to it.” Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 n.5, 104 S. Ct. 3065, 82 L. Ed. 2d 221 (1984).

Because the version of § 17-257n (f) as revised to 1989 is not in issue in this case, I do not find persuasive the majority’s reliance on the subsequent amendment. As revised to 1989, § 17-257n (f) provides that “the court shall . . . commence a hearing on the recommendation or application for discharge or petition for continued commitment. At the hearing, the acquittee shall have the burden of proving by a preponderance of the evidence that the acquittee is a person who should be discharged.” Under the majority’s construction of this language, the state’s attorney satisifies his statutory burden in seeking to continue the acquittee’s confinement by performing the ministerial act of filing a petition with the trial court at least ninety days before the completion of the maximum commitment term. At the hearing, the acquittee must prove that he is eligible for discharge, notwithstanding the fact that he has completed his maximum term of commitment ordered by the court. I am not persuaded that the legislature intended this result. Moreover, it is significant that the parties, as well as amicus, agree that § 17-257n (f), even as amended, places on the state’s attorney the burden of proof in a hearing on a petition for continued confinement.

It seems to me that, once an acquittee completes the fixed maximum term, he becomes entitled to the same rights as anyone else respecting involuntary commitment to a mental health facility. Those rights include the right not to be committed unless the party seeking the commitment proves the necessity of commitment by clear and convincing evidence. General Statutes § 17-178 (c). Moreover, this is not a case in which the statute pertaining to insanity acquittees provides for indefinite commitment without any fixed maximum commitment term. Cf. Jones v. United States, 463 U.S. 354,103 S. Ct. 3043, 77 L. Ed. 2d 694 (1983).

Despite these considerations, I concur in the result reached by the majority. Under our statutory scheme, the acquittee’s confinement in a mental health facility “rests on his continuing illness and dangerousness.” Id., 369. The statutes contemplate that these two considerations must guide the trial court in establishing a maximum commitment term. General Statutes (Rev. to 1987) § 17-257c. If, upon reviewing evidence of an acquittee’s past conduct and psychiatric background, the trial court determines that the interests of the acquittee and society are best served by an indefinite commitment term not to exceed a particular number of years, it would make no sense to sever from that commitment time the time the acquittee spent in jail prior to sentencing. During the presentence jail time, of course, a defendant who is subsequently acquitted by reason of insanity is not receiving any therapy designed to eradicate his mental illness. Jail is not a therapeutic milieu. Thus, to credit presentence jail time against the maximum commitment term runs counter to the rationale of the commitment provisions. Accordingly, I concur.

Arthur H. Healey, J.,

concurring. I write separately because, in my view, our resolution of this appeal requires us to address directly the issue upon which we granted certification: “Did the state violate the guarantees of equal protection contained in the Connecticut and United States constitutions by declining to credit pretrial jail time against the length of an insanity acquittee’s commitment to a mental hospital?” Franklin v. Berger, 208 Conn. 816, 546 A.2d 282 (1988). I believe that we must address this issue regardless of whether the burden of proof is on the acquittee or the state when the state files a petition for continued commitment. Upon analysis, I conclude that the state did not violate the equal protection clause by declining to reduce the acquittee’s maximum term of commitment.

Equal protection of the laws requires that similarly situated persons be treated similarly or if persons or classes are treated disparately, that there be a justification for such disparate treatment. Johnson v. Manson, 196 Conn. 309, 321-22 n.12, 493 A.2d 846 (1985), cert. denied, 474 U.S. 1063,106 S. Ct. 813, 88 L. Ed. 2d 787, reh. denied, 475 U.S. 1061, 106 S. Ct. 1290, 89 L. Ed. 2d 597 (1986), citing Salsburg v. Maryland, 346 U.S. 545, 551, 74 S. Ct. 280, 98 L. Ed. 281 (1954), Baxtrom v. Herold, 383 U.S. 107, 112, 86 S. Ct. 760, 15 L. Ed. 2d 620 (1966), and Missouri v. Lewis, 101 U.S. 22, 31, 25 L. Ed. 989 (1880).“ ‘Equal protection analysis must commence with a determination of whether a legislative classification is invidious, or “inherently suspect,” or whether the legislation impinges upon a fundamental right. Where the legislation impinges upon a fundamental right or creates a suspect classification then it must be struck down unless justified by a compelling state interest. . . . Where the statute does not involve fundamental rights or suspect classifications, the legislation will withstand constitutional attack if the distinction is founded on a rational basis.” (Citations omitted.) Frazier v. Manson, 176 Conn. 638, 645, 410 A.2d 475 (1979).

Although I agree with the majority opinion insofar as it says that it is often impossible to reduce commitment periods by jail time because most acquittees are committed to a mental health facility for an indefinite period of time depending on their mental health, this argument does not seem to hold true for those acquit-tees who serve the definite maximum commitment term as set by the trial court and who are released upon the expiration of that term. This is precisely the claim that the petitioner asserts. For this group of individuals that serves no more or no less than the maximum term of commitment, there necessarily are disparate periods of total confinement (jail time and commitment time) between those who can and those who cannot afford bail. The question presented to this court must be whether this disparate treatment violates the constitutional guarantee of equal protection of the laws.

As stated earlier, we must determine whether the classification of the two groups, i.e., (1) those individuals who are confined in jail before trial and for the maximum term of commitment in a mental health facility, and (2) those who are confined only for the maximum term of commitment in a mental health facility, is “inherently suspect” or whether the legislative scheme impinges on a fundamental right. I conclude that this case involves neither a suspect class nor a fundamental right.

According to the parties, the acquittee in this case was indigent and therefore unable to post the pretrial bond and, consequently, spent 293 days in jail prior to trial. Accordingly, the petitioner alleges a classification based on indigency for purposes of equal protection analysis.

Although the petitioner argues that the court’s analysis of this equal protection issue must be guided by the strict scrutiny standard, he does not allege, nor would I find, that his status as an indigent makes him a member of a suspect class. See Petitioner’s Brief, p. 15; San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 28-29, 93 S. Ct. 1278, 36 L. Ed. 2d 16 (1973); Moscone v. Manson, 185 Conn. 124, 130, 440 A.2d 848 (1981); J. Nowak, R. Rotunda & J. Young, Constitutional Law (2d Ed. 1983) p. 731. Rather, the petitioner claims, as the Appellate Court found, that strict scrutiny is the appropriate standard of review based on the infringement of a fundamental right. The petitioner claims that “[hjere the refusal to credit petitioner with jail time affects the period of his confinement under the fixed maximum term. His liberty right is impinged upon by the additional 293 days he is confined before the expiration of that term triggers a discharge or a shifting of the burden of proof at a court hearing.”

I disagree with the petitioner’s contention. I am inclined to follow the reasoning of those cases that hold jail time credit to be a matter of legislative grace rather than a constitutional requirement. See, e.g., Lewis v. Cardwell, 609 F.2d 926, 928 (9th Cir. 1979); Jackson v. Alabama, 530 F.2d 1231, 1237 (5th Cir. 1976); Johnson v. Manson, supra, 321 n.12; People v. Turman, 659 P.2d 1368, 1373-74 (Colo. 1983); cf. Johnson v. Prast, 548 F.2d 699, 702 (7th Cir. 1977); King v. Wyrick, 516 F.2d 321, 323 (8th Cir. 1975); United States v. Gaines, 449 F.2d 143, 144 (2d Cir. 1971).

Because I consider jail time credit as a matter of legislative grace, and I do not view the denial of such credit as implicating fundamental rights or, in this case, affecting a suspect class, the standard of review in an equal protection challenge such as this is whether the denial of jail time credit is rationally related to a legitimate government purpose. See Ryszkiewicz v. New Britain, 193 Conn. 589, 597, 479 A.2d 793 (1984). I con-elude that the statute satisfies this rational basis standard.

Without doubt, the state has a legitimate interest in protecting society from individuals who are mentally disabled and pose a danger to others. Similarly, the state has an interest in protecting mentally disabled persons from harm that they might inflict upon themselves. General Statutes § 17-257c provides for this protection by authorizing the commitment of persons found not guilty by reason of mental disease or defect in our state mental health facilities. While committed, these individuals receive treatment that may eventually enable them to be released from the mental health facilities. See General Statutes § 17-257c (e) (1). Undoubtedly, treatment of one’s mental disease or defect is essential.

As Justice Glass states in his concurring opinion, there is no such mental health treatment during pretrial jail time. Accordingly, it is rational not to reduce an insanity acquittee’s maximum term of commitment, during which he or she receives such treatment, by the acquittee’s pretrial jail time, during which no such treatment is provided. The goals of each form of confinement are vastly different. See McGinnis v. Royster, 410 U.S. 263, 270-71, 93 S. Ct. 1055, 35 L. Ed. 2d 282 (1973). Therefore, the habeas court did not err in refusing to reduce the petitioner’s maximum commitment term by the amount of time that he spent in jail before sentencing.

Accordingly, I concur in the result reached by the majority.

       “[General Statutes] Sec. 53a-55. manslaughter in the first degree: class b felony, (a) A person is guilty of manslaughter in the first degree when: (1) With intent to cause serious physical injury to another person, he causes the death of such person or of a third person; or (2) with intent to cause the death of another person, he causes the death of such person or of a third person under circumstances which do not constitute murder because he committed the proscribed act or acts under the influence of extreme emotional disturbance, as provided in subsection (a) of section 53a-54a, except that the fact that homicide was committed under the influence of extreme emotional disturbance constitutes a mitigating circumstance reducing murder to manslaughter in the first degree and need not be proved in any prosecution initiated under this subsection; or (3) under circumstances evincing an extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.
      “(b) Manslaughter in the first degree is a class B felony."

       Although the petitioner was originally committed under General Statutes § 53a-47, General Statutes (Rev. to 1987) § 17-257w (a) makes General Statutes § 17-257 et seq. applicable in the instant action. That section states that “sections 17-257a to 17-257v, inclusive, apply ... (2) to any person who, prior to July 1,1985, was found not guilty by reason of mental disease or defect . . . and who, on July 1,1985, is confined ... or otherwise subject to court supervision pursuant to section 53a-47 of the general statutes, Revision of 1958, revised to January 1, 1985.” Amendments to General Statutes (Rev. to 1987) § 17-257 et seq. became effective on October 1,1987, and are codified in the current volumes of the General Statutes. See General Statutes § 17-257 et seq.; Public Acts 1987, No. 87-486. Although the 1987 amendment made no substantive changes, we note that because the petitioner’s habeas petition was heard by the Superior Court in May, 1987, all references to § 17-257 et seq. in this opinion are to the preamended statute, General Statutes (Rev. to 1987) § 17-257.

       In addition, the petitioner asserted in his petition for habeas corpus that he was statutorily entitled to have the time he spent in confinement in a mental institution prior to trial credited against the maximum term of his commitment. The habeas court rejected this argument and the petitioner did not raise it in the Appellate Court.

       While his appeal was pending before the Appellate Court, the petitioner’s maximum term of commitment expired. Finding that the petitioner’s claim was not moot on the basis of the principle of capable of repetition, yet evading review; Delevieleuse v. Manson, 184 Conn. 434, 437, 439 A. 2d 1055 (1981); the Appellate Court determined that it had the authority to hear the claim. Franklin v. Berger, 15 Conn. App. 74,77-78, 554 A. 2d 650 (1988). We agree with the Appellate Court and base our jurisdiction on the same reasoning.

       The constitution of Connecticut, article first, § 20, provides: “No person shall be denied the equal protection of the law nor be subjected to segregation or discrimination in the exercise or enjoyment of his civil or political rights because of religion, race, color, ancestry or national origin.”
      The constitution of the United States, amendment fourteen, § 1, provides: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
      We discuss the state and federal clauses simultaneously as “ ‘[t]he equal protection provisions of the federal and state constitutions have the same meaning and limitations.’ Keogh v. Bridgeport, 187 Conn. 53, 66, 444 A.2d 225 (1982).” Daily v. New Britain Machine Co., 200 Conn. 562, 577, 512 A.2d 893 (1986).

       The petitioner recognizes that there could be an “indeterminate confinement [period] based solely on [an acquittee’s] mental health” but attempts to distinguish it as a totally different type of confinement than the “sentence like” fixed maximum term set by the court under General Statutes § 17-257c (e) (1) (A). The petitioner claims that this case involves the “sentence like” fixed maximum term type of confinement. This distinction is invalid. Section 17-257 sets forth a comprehensive scheme for the confinement and discharge of insanity acquittees. Under the statute all acquittees are released when they are no longer a danger to themselves or others. See discussion, infra. Moreover, the petitioner’s attempt to limit our review in this case to a factual situation involving discharge at the expiration of the fixed maximum term is not based on the facts in this case as the petitioner himself remains confined beyond the fixed maximum term at Norwich Hospital pursuant to a petition for continued confinement. The crediting of his pretrial jail time against the fixed term set by the court would, therefore, have not resulted in the petitioner’s release.

       “[General Statutes] Sec. 53a-13. lack of capacity due to mental disease or defect as affirmative defense, (a) In any prosecution for an offense, it shall be an affirmative defense that the defendant, at the time he committed the proscribed act or acts, lacked substantial capacity, as a result of mental disease or defect, either to appreciate the wrongfulness of his conduct or to control his conduct within the requirements of the law.
      “(b) It shall not be a defense under this section if such mental disease or defect was proximately caused by the voluntary ingestion, inhalation or injection of intoxicating liquor or any drug or substance, or any combination thereof, unless such drug was prescribed for the defendant by a licensed practitioner, as defined in section 20-184a, and was used in accordance with the directions of such prescription.
      “(c) As used in this section, the terms mental disease or defect do not include (1) an abnormality manifested only by repeated criminal or otherwise antisocial conduct or (2) pathological or compulsive gambling.”

       After a psychiatric examination by a state psychiatrist, the acquittee may request an examination by an independent psychiatrist. General Statutes § 17-257c (c).

       The procedures at such hearings are set forth at General Statutes §§ 17-257p, 17-257q, 17-257r. “At any hearing before the board, the acquit-tee, or any applicant seeking an order less restrictive than the existing order, shall have the burden of proving by a preponderance of the evidence the existence of conditions warranting a less restrictive order.” General Statutes § 17-257q (f).

       The board is required to “conduct a hearing to review the status of the acquittee within ninety days of an order committing the acquittee to the jurisdiction of the board . . . .” General Statutes § 17-257d. Following that initial hearing, the board is required under General Statutes § 17-257Í to “conduct a hearing to review the status of the acquittee not less than once every two years.” Further, the superintendent of the state hospital to which the acquittee is committed is required, on the order of the board, to “submit to the board at least every six months a written report with respect to the mental condition of the acquittee.” General Statutes § 17-257g. Copies of this report must be sent to counsel for the acquittee and the state’s attorney. General Statutes § 17-257g.

       “Person who should be discharged” is defined in General Statutes § 17-257a (10) as “an acquittee who is not mentally ill to the extent that his discharge would constitute a danger to himself or others.”

       The board acts under General Statutes § 17-257e which provides: “FINDING AND ACTION BY BOARD. RECOMMENDATION OF DISCHARGE. ORDER OF CONDITIONAL release or CONFINEMENT. At any hearing before the board considering the discharge, conditional release or confinement of the acquit-tee, except a hearing pursuant to section 17-257m or subsection (d) of section 17-257n, the board shall make a finding as to the mental condition of the acquittee and, considering that its primary concern is the protection of society, shall do one of the following:
      “(1) If the board finds that the acquittee is a person who should be discharged, it shall recommend such discharge and, pursuant to section 17-257n, file an application for discharge with the court.

        “(2) If the board finds that the acquittee is a person who should be conditionally released, the board shall order the acquittee conditionally released subject to such conditions as are necessary to prevent the acquittee from constituting a danger to himself or others.
      “(3) If the board finds that the acquittee is a person who should be confined, the board shall order the person confined in a hospital for mental illness for custody, care and treatment.”
      Under General Statutes § 17-257m (a), the hospital superintendent may request the board to recommend to the court the discharge of the acquit-tee in custody. Following such a request, the board is required to conduct a hearing to determine whether the acquittee should be discharged. General Statutes § 17-257n (a). Also, the board may, on its own motion, consider whether to recommend discharge of the acquittee from custody and, after notice to the acquittee’s counsel and the state’s attorney, conduct a hearing to make a finding of whether the acquittee is a person who should be discharged. If the board determines that the acquittee should be discharged, it is required to apply to the court for discharge under General Statutes § 17-257n. General Statutes § 17-257m (b) and (c). Finally, the acquittee may, under the jurisdiction of the board, apply to the court for discharge from custody. General Statutes § 17-257n (a). An acquittee may not, however, “apply for discharge . . . more than once every six months and no sooner than six months after the initial board hearing held pursuant to section 17-257d.” General Statutes § 17-257n (a).

       “ ‘Danger to himself or others’ includes danger to the property of others.” General Statutes § 17-257a (5).

       General Statutes § 17-257n (f) provides: “After receipt of the board’s report and any separate examination reports, the court shall promptly commence a hearing on the application for discharge or petition for continued commitment. At the hearing, the acquittee or the board when applying for an order of discharge, shall have the burden of proving by a preponderance of the evidence that the acquittee is a person who should be discharged.”
      Assuming that the equal protection clauses were implicated, the Appellate Court held that it was unfair to deny indigent acquittees their pretrial jail time because the state’s interest of protecting society would be better served by petitioning for continued confinement under General Statutes § 17-257n. Franklin v. Berger, 15 Conn. App. 74,83, 544 A. 2d 650 (1988). In so holding, the court stated that the burdens on the state under § 17-257n were minimal as they would merely have to file a petition for continued confinement. In footnote six of its opinion, the court stated, misciting General Statutes § 17-257e, that in a hearing for continued confinement the acquittee would have the burden of proving that he is a person who should be discharged. Id.
      Arguing that the Appellate Court erred in finding that the state’s burden under § 17-257n was minimal, the state maintains on appeal that the court was incorrect in finding that the acquittee, and not the state, has the burden of proving that the acquittee should be discharged at hearings for continued confinement. Stating that § 17-257n is ambiguous, the state urges us to find that the burden is on the state at such hearings and, therefore, the state’s burden under the statute is more than minimal. While the Appellate Court did cite the wrong statutory provision in footnote six, it did not misstate the law. As discussed, infra, § 17-257n (f) places the burden on the acquittee at hearings for continued confinement to prove that he is a person who should be discharged.

       See footnote 2, supra.

       I agree with Justice Glass’s analysis of General Statutes (Rev. to 1987) § 17-257n (f) in finding that this statute is ambiguous and that the burden of proof is on the state when the state’s attorney files a petition for continued commitment. As the statute existed in 1987, it was silent as to the burden of proof upon a petition for continued commitment. I also am not presuaded that the 1989 revision of § 17-257n (f) was intended to clarify the issue of upon whom the burden of proof rests when the state initiates a petition for continued commitment as claimed by the majority. In addition to Justice Glass’s analysis, I would add that in my view, to place the burden of proof on the acquittee to establish eligibility for discharge upon the expiration of the maximum commitment term impinges on the acquit-tee’s liberty interest and thus implicates due process concerns. See Fasulo v. Arafeh, 173 Conn. 473, 476, 378 A.2d 553 (1977). While I do not dispute the power of the state to continue the commitment of those insanity acquit-tees who still pose a danger to themselves or others after the expiration of the maximum commitment term, to avoid constitutional infirmity I believe that the burden of proof to establish such a danger at the end of that term must be on the state. See id., 480-81.

       Whether the burden of proof shifts to the acquittee at the expiration of the definite maximum term in the event that the state files a petition for continued commitment does not obviate the disparate treatment between those persons who have spent time in jail prior to their commitment and those who have not spent time in jail prior to their commitment. The former group necessarily has been confined for a longer period of time than the latter.

       While I recognize that our discussion in Laden v. Warden, 169 Conn. 540, 544, 363 A.2d 1063 (1975), which we reiterated in Payton v. Albert, 209 Conn. 23, 33, 547 A.2d 1 (1988), where we said that “[t]he refusal to credit the plaintiff with jail time affects the period of his confinement and directly impinges on his fundamental right of liberty,” is inconsistent with our statement in Johnson v. Manson, 196 Conn. 309, 321 n.12, 493 A.2d 846 (1985), cert. denied, 474 U.S. 1063,106 S. Ct. 813, 88 L. Ed. 2d 787, reh. denied, 475 U.S. 1061,106 S. Ct. 1290, 89 L. Ed. 2d 597 (1986), I agree with the state’s argument that the statement in Laden is too broad. The overbroad nature of the statement in Laden is demonstrated by the logical inference from it that the denial of good time credit also implicates a fundamental liberty right because such a denial also necessarily affects the length of an individual’s confinement. This court and the United States Supreme Court have declared, however, that there is no constitutional right to good time credit. See Wolff v. McDonnell, 418 U.S. 539, 577, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974); Frazier v. Manson, 176 Conn. 638, 646-47, 410 A.2d 475 (1979). Thus, I maintain that jail time credit is a matter of legislative grace and is not constitutionally required.
      Furthermore, it must be noted that most of the cases holding that jail time credit is not constitutionally mandated recognize that under the United States Supreme Court’s holdings, such as Tate v. Short, 401 U.S. 395, 91 S. Ct. 668,28 L. Ed. 2d 130 (1971), and Williams v. Illinois, 399 U.S. 235, 90 S. Ct. 2018, 26 L. Ed. 2d 586 (1970), such credit may be necessary to avoid constitutional difficulty when an indigent defendant is sentenced to the maximum allowable term for an offense. I conclude that this principle is inapposite here because the petitioner’s maximum term of commitment based on his insanity acquittal was not the maximum allowable term that the trial court could have imposed under the offense charged, i.e., manslaughter in the first degree. See General Statutes § 17-257c (e). A distinction must be drawn between the maximum term of commitment to a mental health facility and the maximum allowable sentence under the charge upon which the individual was acquitted. The trial court can set the maximum term of commitment at any length of time not exceeding the maximum allowable sentence that the individual could have received if convicted of the crime charged. See General Statutes § 17-257c (e). The trial court in this case ordered the petitioner committed for a maximum term of ten years, whereas the maximum allowable term of incarceration for manslaughter in the first degree, the charged offense, was twenty years. See General Statutes (Rev. to 1975) §§ 53a-35 (b) (2) and (c) (2) and 53a-55 (b). Accordingly, because the petitioner did not receive the maximum allowable term of commitment based on the penalty provision of the manslaughter statute, the United States Supreme Court’s concern that “once the State has defined the outer limits of incarceration necessary to satisfy its penological interests and policies, it may not then subject a certain class of convicted defendants to a period of imprisonment beyond the statutory maximum solely by reason of their indigency”; Williams v. Illinois, supra, 241-42; is not at issue here. In other words, the indigent petitioner in this case is not being treated unconstitutionally in the equal protection context as expounded in Williams v. Illinois, supra, because even with the petitioner’s jail time added to his ten year commitment, he is not being confined beyond the maximum allowable sentence under the offense, i.e., manslaughter in the first degree. Therefore, the exception to the general principle that jail time credit is not constitutionally mandated is not a concern here; the petitioner is not confined beyond the period of time that the legislature has deemed to be the “outer limit.”


author: Peters, C. J.

text:
    Billy C. Christensen v. Anthony F. Cutaia
    (13661)
    Peters, C. J., Healey, Callahan, Covello and Hull, Js.
    Argued May 4
    decision released June 20, 1989

      Susan C. Webb, for the appellant (defendant).

      Edward V. O’Hanlan, with whom was Steven R. Humphrey, for the appellee (plaintiff).
   Peters, C. J.

This is an appeal from the granting of summary judgment and the award of interest in accordance with the terms of a series of promissory notes. The plaintiff, Billy C. Christensen, brought an action to collect the amount due on a series of promissory notes executed by the defendant, Anthony F. Cutaia. The notes contained acceleration clauses that, upon the defendant’s default, the plaintiff had exercised to declare all of the notes due and owing. After granting summary judgment, the trial court permitted reargument on the issue of damages and thereafter rendered judgment for the plaintiff in the amount of $65,605.65, despite the defendant’s argument that he had tendered payments to the plaintiff that should have been taken into account in calculating his liability for interest. The defendant appealed to the Appellate Court. We transferred the case here pursuant to Practice Book § 4023 and now find no error.

The pleadings of the parties and their affidavits disclose the following facts. On September 15, 1985, the defendant drafted and executed, as maker, a series of twelve promissory notes in the aggregate principal amount of $70,788, as partial payment for his purchase of certain limited partnership interests. The notes, numbered consecutively “No. 2 of 13” through “No. 13 of 13,” were each payable to the plaintiff in the amount of $5899 plus 11 percent interest per annum.

In identical terms, each note provided that it became due and payable on the fifteenth day of every third month and that, upon default, the plaintiff could cause all of the remaining notes to become “immediately due and payable.” The notes defined a “default” to include the defendant’s failure “to make any payment of principal or interest due on this Note when same shall be due and payable . . . . ” Each note also provided that, in the event of a default, the plaintiff would be entitled additionally to 18 percent interest per annum on the entire unpaid principal until the defendant paid the entire amount due. The notes gave the maker no grace period for delayed payments; instead, they contained nonwaiver clauses,* *** stipulating that the plaintiff’s failure to assert a right would not amount to a waiver and requiring any waiver to be in writing.

From the outset, the defendant’s payments were untimely. The plaintiff received payment for the note denominated "No. 2,” due and payable on March 15, 1986, on March 17,1986. He received payment for note No. 3, due and payable on June 15, 1986, on June 24, 1986, and received payment for note No. 4, due and payable on September 15,1986, on October 17,1986. After receiving the belated payment on note No. 4, the plaintiff informed the defendant, directly as well as through an employee, that he would no longer tolerate late payment.

On January 8,1987, not having received payment on note No, 5, due on December 15,1986, the plaintiff telephoned the defendant and informed his secretary that he intended to exercise his right to declare a default and to accelerate payment on the notes. On that same day he informed the defendant by certified mail that he had declared the entire outstanding amount of the notes due and payable immediately. The defendant received this notice on January 9, 1987, and that day sent a check to the plaintiff by express mail as payment for note No. 5. The plaintiff deposited this check in his account.

On February 20, 1987, the plaintiff brought the present action for payment of the unpaid balance on the remaining eight promissory notes, due in full after his exercise of the right to accelerate. The defendant claimed that the plaintiffs course of conduct in having previously accepted late payments had led the defendant to believe that time was not of the essence. He thus argued that the plaintiff was estopped from exercising his right to accelerate because, by his conduct, the plaintiff had in effect waived that clause in the notes. He also claimed that any default with respect to note No. 5 had been cured by his payment of that note in accordance with the plaintiffs demand.

During the pendency of this litigation, the defendant continued to forward payment to the plaintiff for each note as it came due. The plaintiff refused to accept these tenders even though the defendant characterized the payments as unqualified tenders, offered without prejudice.

After the close of the pleadings, the trial court granted the plaintiffs motion for summary judgment, ruling that neither the defendant’s pleadings nor his affidavits had raised a genuine issue of material fact. The court found that, upon the defendant’s default, the plaintiff had properly exercised his right to acceleration and that neither the defendant’s subsequent tender nor the plaintiff’s acceptance of payment for note No. 5 had cured the default. Thus, the court rendered judgment for the plaintiff in the amount of $65,605.65, comprising the remaining principal of $47,192,11 percent interest to the date of default, December 15,1986, and 18 percent interest thereafter.

On appeal the defendant claims that the trial court erred in granting the plaintiffs motion for summary judgment and in calculating damages in light of the defendant’s unqualified tenders subsequent to the declaration of default. Neither claim persuades us.

I

The defendant first argues that the trial court erred in granting the plaintiff’s motion for summary judgment in that there existed two genuine issues of material fact: (1) whether prior to the defendant’s payment on note No. 5 he had notice of the plaintiff’s declaration of a default under that note; and (2) whether the plaintiff had waived his right to object to the late payments. We disagree that any genuine issue of material fact existed. See Practice Book § 384.

The defendant’s claimed factual dispute about notice of his default arises out of his contention that he tendered payment of note No. 5 before he personally received notice of the plaintiff’s declaration of a default. He asserts that the plaintiff claims only to have spoken with the defendant’s secretary, and not with the defendant himself, when the plaintiff announced his intent to declare a default and to accelerate the remaining indebtedness on January 8, 1987. The defendant alleges that it is unclear whether he mailed his payment for note No. 5 before or after his receipt of the plaintiffs certified letter manifesting the same intention. He reminds us that the plaintiff thereafter received, accepted and cashed the payment check.

This argument fails because, as a matter of law, it is immaterial whether the defendant had notice of the declared default when he hurriedly sent payment by express mail to the plaintiff. Because payment on note No. 5 was already indisputably late, the defendant was, by the terms of the notes, in default, and the plaintiff was entitled affirmatively to exercise his option to accelerate. The notes did not prescribe any manner of notification nor did they require the plaintiff to provide notice of default to the defendant before the tender of any payment. Absent statutory or contractual language to the contrary, the plaintiff had no such obligation. Albertina Realty Co. v. Rosbro Realty Corporation, 258 N.Y. 472, 475-76,180 N.E. 176 (1932); Key International Manufacturing, Inc. v. Stillman, 103 App. Div. 2d 475, 477, 480 N.Y.S.2d 528 (1984); see also Console v. Torchinsky, 97 Conn. 353, 355, 116 A. 613 (1922). Thus, whether the notice arrived before the defendant had tendered payment is not a genuine issue of material fact.

The defendant also argues that there existed a genuine issue of material fact regarding his claim of waiver arising out of the plaintiffs actions in accepting and cashing previous late payments. This contention is untenable in light of the language in the notes expressly providing that “[fjailure of the holder hereof to assert any right herein shall not be deemed to be a waiver thereof.” While inconsistent conduct may, under certain circumstances, be deemed a waiver of a right to acceleration, the insertion of a nonwaiver clause is designed to avoid exactly such an inference. The defendant drafted these notes himself and we therefore construe the included clause against him strictly. See Mack Financial Corporation v. Crossley, 209 Conn. 163, 168, 550 A.2d 303 (1988); Greenwich Contracting Co. v. Bonwit Construction Co., 156 Conn. 123, 130, 239 A.2d 519 (1968). Thus, the plaintiffs earlier election to accept late payments rather than to enforce acceleration did not operate as a waiver of his contractual right to accelerate. Further, the notes provided that any waiver shall not “be effective, unless in writing signed by the party against whom enforcement of any waiver . . . is sought.” Neither the defendant’s pleadings nor his affidavits have alleged the existence of any such writing. We therefore conclude that the trial court did not err in granting the plaintiff’s motion for summary judgment.

II

Finally, the defendant claims error in the trial court’s calculation of interest once it had determined the validity of the plaintiff’s acceleration. He does not dispute the trial court’s calculation of the outstanding principal, the regular interest or the default interest. Rather, the defendant contends that because he continued to make unqualified tenders of payment to the plaintiff, which the plaintiff refused to accept, the court erred in awarding 18 percent interest on those sums after the date of their tender. The defendant’s argument runs contrary to both the terms of the contract and the applicable principles of commercial law.

Once the plaintiff exercised his right to accelerate payment, the defendant’s outstanding indebtedness became the total amount due on all of the notes, plus accrued interest. The amounts tendered by the defendant, however, represented the amount due every three months, i.e., a partial payment of the total amount then due and owing. Thus, in effect, the defendant argues that a tender of partial payment discharges any subsequent liability for interest on that amount.

There is no authority to support the defendant’s position. Each of the notes he drafted expressly provided that, upon the defendant’s default, the plaintiff would be entitled to receive 18 percent interest “on the entire unpaid principal sum ... to be computed from the due date and until the actual receipt and collection of the entire amount due pursuant to the terms of this Note. ” (Emphasis added.) This clause is entirely consistent with § 3-604 (1) of the Uniform Commercial Code, which provides: “Any party making tender of full payment to a holder when or after it is due is discharged to the extent of all subsequent liability for interest, costs and attorney’s fees.” (Emphasis added.) See General Statutes § 42a-3-604 (1); N.Y. U.C.C. Law § 3-604 (1) (McKinney 1989). If the debtor does not tender full payment, the holder retains the right to reject any partial payment and to collect the interest that continues to accrue until the tender of the entire amount due. See Still v. Plaza Marina Commercial Corporation, 21 Cal. App. 3d 378, 385, 98 Cal. Rptr. 414 (1971); Security National Bank of Long Island v. Schwartz, 2 U.C.C. Rep. Serv. 411, 412 (N.Y. Sup. 1965); Citizens Valley Bank v. Douglas Robins, Inc., 69 Or. App. 711, 715, 687 P.2d 815 (1984); Kohlenberg v. American Plumbing Supply Co., 82 Wis. 2d 384, 397-99, 263 N.W.2d 496 (1978). Thus, the trial court did not err in awarding interest on the entire amount due at the annual rate of 18 percent, despite the defendant’s unqualified partial tenders.

There is no error.

In this opinion the other justices concurred.

       At oral argument, defense counsel acknowledged that the defendant was the draftsman of the notes.

       “No. 2” became due and payable on March 15,1986, “No. 3” on June 15, 1986, “No. 4” on September 15, 1986, and “No. 5” on December 15,1986. “No. 13,” the final note in the series, became due and payable on December 15, 1988.

       Each promissory note provided: “The principal of this Note together with the interest accrued thereon shall, at the option of the holder, be immediately due and payable in the event of default by the Maker under this Note. Any one or more of the following shall constitute an ‘event of default’ hereunder:
      “(a) The Maker fails to make any payment of principal or interest due on this Note when same shall be due and payable; and
      “(b) the Maker shall be [in] default under any one or more of the Other Notes . ”

       The notes provided: “Maker does hereby agree that if an event of default occurs pursuant to the terms of this Note, or collateral security agreement securing the note between Billy C. Christensen, as secured party, and Anthony F. Cutaia, as debtor, of even date herewith, then the holder of this Note shall be entitled to receive interest on the entire unpaid principal sum at the rate of eighteen percent (18%) per annum or at the maximum rate of interest which the Maker may by law pay, whichever is lower, to be computed from the due date and until the actual receipt and collection of the entire amount due pursuant to the terms of this Note.”

       The notes provided: “Failure of the holder hereof to assert any right herein shall not be deemed to be a waiver thereof. . . . This note shall not be modified, terminated or discharged, nor shall any waiver hereunder be effective, unless in writing signed by the party against whom enforcement of any waiver, modification, termination or discharge is sought.”

       The defendant, in his pleadings and affidavit, does not dispute the date that the plaintiff received payment from him, but simply represents that he had dated the checks on March 15, 1986, June 13, 1986, and September 29, 1986, respectively.

       The trial court originally rendered judgment in the amount of $72,685.10. Upon reargument, the court corrected its calculation of the amount due, and rendered judgment for the plaintiff in the amount of $65,605.65, calculated to June 2, 1988. The court ruled that additional interest would accumulate at the rate of $23.59 per diem thereafter.

       The defendant makes two claims on appeal that he did not make below on the question of the existence of a genuine issue of material fact. He now claims that there was a factual dispute about: (1) whether the acceleration clause on which the plaintiff relied authorized acceleration of all eight outstanding notes or only of note No. 5; and (2) whether terms of the security interest, which served as collateral for the notes and provided a ten day “grace period,” modified the terms of default in the notes themselves. Since neither of these claims was “distinctly raised” in the trial court, in the defendant’s pleadings, affidavit, memorandum opposing summary judgment, or by way of a motion to correct or reconsider, and neither was addressed by the trial court in rendering its judgment, we need not consider them further. Practice Book § 4185; see Dubay v. Irish, 207 Conn. 518, 528, 542 A.2d 711 (1988); Mingachos v. CBS, Inc., 196 Conn. 91, 96, 491 A.2d 368 (1985).

       The notes provided that New York law governs their construction.

       The defendant has not argued that he tendered payment before the plaintiff affirmatively exercised his option to accelerate on January 8,1987.

       The defendant’s claim that the 18 percent rate of interest violates General Statutes §§ 37-4, 37-5, 37-6, 37-8, 42-110a and 42a-9-201 ignores General Statutes § 37-9 (4), which provides in part: “The provisions of sections 37-4, 37-5 and 37-6 shall not affect ... (4) any loan made to a foreign or domestic corporation, general or limited partnership or association organized for a profit or any individual, provided such corporation, partnership, association or individual is engaged primarily in commercial, manufacturing, industrial or nonconsumer pursuits and provided further that the funds received by such corporation, partnership, association or individual are utilized in such entity’s business or investment activities and are not utilized for consumer purposes and provided further that the original indebtedness to be repaid is in excess of ten thousand dollars . . . .”


author: Hull, J.

text:
    Clayton J. Bristol, Executor (Estate of Candace B. Keeler), et al. v. Commercial Union Life Insurance Company of America
    (13591)
    Peteks, C. J., Callahan, Covello, Hull and Ment, Js.
    Argued March 8
    decision released June 27, 1989

      Duncan B. Hume, for the appellant (defendant).

      David S. Grossman, for the appellee (plaintiff).
   Hull, J.

This appeal arises from an action brought by the plaintiff, Clayton J. Bristol, in his capacity as guardian of the estate of minor beneficiary Kevin R. Keeler, against the defendant, Commercial Union Life Insurance Company of America, to recover under a policy of insurance issued by the defendant on the life of the decedent, Candace B. Keeler. In its answer the defendant admitted that on February 24, 1986, in exchange for a premium check received in the amount of $1013.60, it issued a policy insuring the life of Ms. Keeler for $100,000. The defendant claimed by way of special defense, however, that it was not obligated to pay on the policy after Ms. Keeler’s death because Ms. Keeler had allegedly made a material misrepresentation concerning her medical history in three separate application forms upon which the defendant purportedly relied in issuing the life insurance policy in question. The case was tried to the court. In its memorandum of decision the trial court concluded, for various reasons, that the defendant was not entitled in its defense to rely upon the allegedly false statements contained in any of the three application forms, and that it was therefore precluded from denying coverage. Accordingly, the trial court rendered judgment in favor of the plaintiff and ordered the defendant to pay the plaintiff the face amount of the policy, plus costs and interest. This appeal by the defendant ensued. We find no error.

The complicated factual background of this appeal is as follows. On February 4,1986, an insurance agent for the defendant visited Ms. Keeler at her home in Durham. This visit was prompted by Ms. Keeler’s desire to purchase life insurance, a matter that she had discussed previously with the insurance agent, Kevin Ryan. As a necessary first step toward obtaining coverage, Ms. Keeler was required to fill out an application form. Ms. Keeler intended to purchase life insurance from the defendant, Commercial Union Life Insurance Company of America (CU of America); Ryan, however, mistakenly provided Ms. Keeler with an application form from Commercial Union Life Insurance Company of New York (CU of New York), a separate but “related” company of the defendant. This oversight went undetected as Ryan and Ms. Keeler proceeded to fill out the application. The application was completed through a question and answer process: Ryan read Ms. Keeler the questions contained in the application, she verbally responded to these inquiries, and he transcribed her answers onto the appropriate answer spaces in the application. In response to a particular question inquiring whether the applicant had ever received treatment for alcoholism, Ms. Keeler answered “no.” After all the necessary answers and information had been transcribed, Ms. Keeler signed the application in three places. The application, dated February 4,1986, was then submitted to the defendant.

The defendant admits that in exchange for an annual premium received from Ms. Keeler, it issued a policy on February 24, 1986, insuring her life for $100,000. The “General Provisions” portion of this policy provides that “[t]he entire contract consists of this contract, any attached riders and the application ... a copy of which is/are attached. . . . We will not use any statement to void this contract or to defend a claim under it, unless that statement is in an attached written application.” The policy did have attached to it an application; it was not, however, the same application, to CU of New York, that Ms. Keeler had filled out and signed on February 4, 1986. Rather, the document attached to the policy was a CU of America application form, which, except for the company name printed across the top of the first page, is virtually identical in design to the CU of New York application form completed by Ms. Keeler. This new application annexed to the policy contained the same answers that Ms. Keeler had provided in her first application to CU of New York; however, unlike those in the first application, the answers in this new application were typed rather than handwritten, and, further, the application was unsigned and undated.

The defendant acknowledges that the only plausible explanation for this unusual occurrence is that at some point prior to the issuance of the policy the defendant realized that Ms. Keeler’s first application was filled out on the “wrong” company form, i.e., on a CU of New York application form, and that it therefore took the liberty of copying the information contained in that first application form and transferring it onto a “correct” application form bearing the defendant’s name, CU of America. This was done without the knowledge or assistance of Ms. Keeler. Then, upon issuance of the policy, this unsigned CU of America application form was annexed to the policy in lieu of the CU of New York application form that had been completed and signed by Ms. Keeler on February 4, 1986. Thereafter, the policy was sent by the defendant to Ryan, who was then supposed to deliver it to Ms. Keeler. The record discloses, however, that the policy was never actually delivered to Ms. Keeler. Under cross-examination at trial, Ryan admitted to having stated previously under oath at his deposition that the defendant had sent the policy directly to him and that he had retained possession of the policy until Ms. Keeler's death, thereafter delivering it to the executor of her estate.

In addition to the unsigned and undated CU of America application form annexed to the policy, there is also another CU of America application form, dated March 17, 1986, involved in this case. The defendant concedes on appeal, however, that it is not entitled in its defense to rely upon the statements contained in this latter application form. We agree with the defendant that this third application form has no bearing on the issues raised in this appeal and conclude that a discussion of the rather vague circumstances surrounding its appearance in this case would only serve further to complicate, unnecessarily, the factual history of this appeal. Therefore, we shall confine the bulk of our commentary regarding this third application to a footnote.

Ms. Keeler died on December 18, 1986. A certified copy of the death record reveals that the immediate cause of death was “cardio-pulmonary arrest,” “hepatic [liver] failure,” and “fulminant hepatic necrosis (question of).” Shortly after Ms. Keeler’s death, the plaintiff submitted to the defendant proof of death and demanded payment of the face amount of the policy. The defendant declined, claiming that the applications involved in this case contained material misrepresentations made by Ms. Keeler that lawfully relieved it of any obligation to pay on the policy. Specifically, the defendant maintained that Ms. Keeler’s death was directly attributable to her excessive use of alcohol, and that she had falsely represented in the applications that she had never received treatment for alcohol abuse. Upon denial of his demand for payment, the plaintiff instituted this action against the defendant on behalf of the named minor beneficiary to recover the proceeds of the policy. In its answer to the plaintiff’s complaint, the defendant asserted the special defense of material misrepresentation.

After a trial to the court, the court found in favor of the plaintiff. The court, however, never reached the issue of whether Ms. Keeler had actually made a material misrepresentation in the applications. Instead, the court ruled that the defendant was not entitled to rely upon the statements contained in any of the three applications and that it was therefore barred from raising a defense of material misrepresentation. In particular, the court held that the statements contained in the signed application dated February 4, 1986, could not be used by the defendant against Ms. Keeler since the statements were made on an application form to a different company, i.e., CU of New York. As for the CU of America application form annexed to the policy, the court concluded that because that application was unsigned, the statements contained therein could not be attributed to Ms. Keeler and hence could not be used against her. Finally, the court ruled that the CU of America application form dated March 17, 1986, was invalid and could not be relied upon by the defendant, apparently because it postdated the policy. The court’s refusal to recognize the validity of any of the applications, or the representations contained therein, effectively precluded the defendant from denying coverage under the doctrine of material misrepresentation. The defendant has appealed from this adverse judgment.

In view of the previously noted policy language declaring that the defendant “will not use any statement to void this contract or to defend a claim under it, unless that statement is in an attached written application”) (emphasis added); the defendant concedes on appeal that it was not entitled in its defense to rely at trial upon the statements contained in either the CU of New York application form dated February 4,1986, or the CU of America application form dated March 17, 1986, since it is undisputed that neither of these application forms was ever attached to the policy. Accordingly, our attention is focused upon the remaining application form, i.e., the unsigned and undated CU of America application form annexed to the policy that contains answers copied from the earlier CU of New York application form signed by Ms. Keeler.

Under Connecticut law, a misrepresentation material to the risk that is knowingly made by a proposed insured will defeat recovery under a life insurance policy. State Bank & Trust Co. v. Connecticut General Life Ins. Co., 109 Conn. 67, 70-72, 145 A. 565 (1929); see Lazar v. Metropolitan Life Ins. Co., 290 F. Sup. 179,180 (D. Conn. 1968). The defendant maintains that it was entitled to rely in its defense at trial upon the alleged material misrepresentation contained in the unsigned CU of America application form attached to the policy, “the lack of signature being of no effect.” In essence, the defendant argues that because the statements contained in that application form were copied verbatim from the earlier, nearly identical CU of New York application form signed by Ms. Keeler, such statements properly may be considered her own and hence may be used against her. On the other hand, the plaintiff contends that, absent some type of affirmative ratification or adoption by Ms. Keeler of the statements contained in the CU of America application form, the defendant has no right to rely upon them simply because they are identical to prior statements made by Ms. Keeler in an application to another insurance company. We agree with the plaintiff.

We fail to see how Ms. Keeler may be bound by statements contained in an application form that she never independently ratified or adopted in some manner. Ms. Keeler was never personally asked the questions listed in the application form annexed to the policy, never signed that application form and was never provided an opportunity to review the answers contained in that application form since the policy was never delivered to her. There is nothing from which an adoption or ratification of the answers contained in the application form may be implied on the part of Ms. Keeler in this case. Absent such a ratification or adoption, Ms. Keeler cannot be bound by the statements contained therein.

Our position on this matter is not altered by the fact that the answers contained in the unsigned CU of America application form annexed to the policy were copied verbatim from Ms. Keeler’s earlier, signed application form to a different insurance company, i.e., CU of New York. Such an occurrence does not obviate the need for ratification. “In the United States the rule is that a representation to one insurer cannot be evidence of a like representation to another insurer, on application for a different policy, on the same . . . risks.” 7 G. Couch, Insurance Law 2d § 35:135; see also Harmony Fire & Marine Ins. Co. v. Hazlehurst, 30 Md. 380 (1869); Vilas v. New York Central Ins. Co., 72 N.Y. 590 (1878); Cleavenger v. Franklin Fire Ins. Co., 47 W. Va. 595, 35 S.E. 998 (1900). We conclude, therefore, that the defendant’s failure to obtain from Ms. Keeler a ratification or adoption of the statements contained in its application form foreclosed it from relying on those statements in its defense.

There is no error.

In this opinion the other justices concurred.

       The application form is designed so that many of the questions relating to an applicant’s insurability may be answered by checking one of two boxes marked “yes” and “no” located next to each question. In response to the question concerning prior treatment for alcohol abuse, the “no” box is checked.

       Although the chronology of events leading up to the creation of this third application is unclear, the record reveals the following: Sometime after it received Ms. Keeler’s first application form, the defendant notified Ryan that the application had been completed on the wrong form (CU of New York) and that it was necessary to have the application resubmitted on the correct form (CU of America). Ryan in turn contacted Ms. Keeler by telephone, informed her of the problem and requested permission to resubmit her application on a CU of America form. She agreed that this could be done. The CU of America application form earmarked by Ryan for resubmission had already been filled out with the same answers that Ms. Keeler had provided in her first application, and all that was needed to complete the application was Ms. Keeler’s signature. Ms. Keeler, however, did not sign this application; instead, Ryan signed her name on the application and then submitted it to the defendant. Ryan claims that this was done with Ms. Keeler’s express permission. The application is dated March 17,1986. For purposes of this appeal, the most significant fact concerning this third application is that it was not attached to the policy.
      Curiously, the record is devoid of any explanation as to why Ryan would choose to submit this CU of America application dated March 17, 1986, rather than simply having Ms. Keeler sign the CU of America application form that had been attached by the defendant to the policy issued on February 24, 1986, which apparently was in his possession at the time.

       We note that our conclusion that the application is without binding force and effect does not affect the validity of the contract of insurance itself. Although an application is normally required for the completion of a contract of insurance, “[a]n application is not always a requisite, since the insur1 anee company may make a binding contract of insurance by delivering a policy and accepting the premium thereon, even though the insured never requested that the policy be issued. In such a case the insurer is estopped from contending that, in consequence of the want of a proposal, there was no contract.” 1 G. Couch, Insurance Law 2d § 7:2; see Phillips v. Brotherhood of Railway & Steamship Clerks, 226 Iowa 864, 285 N.W. 159 (1939); T. E. Haddox & Co. v. Ohio Valley Fire & Marine Ins. Co., 188 Ky. 680, 223 S.W. 1009 (1920); Glou v. Security Benefit Assn., 114 Pa. Super. 139, 173 A. 883 (1934).
      It is undisputed that the defendant accepted a premium check from Ms. Keeler and in exchange therefor issued a policy insuring her life. Further, although Ms. Keeler never actually received the policy, the delivery of the policy to Ryan was sufficient to put it into effect: “Delivery of the policy to a broker employed by the insured to procure it constitutes delivery to the insured, even though the applicant died without having received it, provided the delivery is unconditional.” 1 G. Couch, supra, § 10:17; see, e.g., Mutual Life Ins. Co. v. Thomson, 94 Ky. 253, 22 S.W. 87 (1893); Michelson v. Franklin Fire Ins. Co., 252 Mass. 336, 147 N.E. 851 (1925); Singer v. National Fire Ins. Co., 154 App. Div. 783,139 N.Y.S. 375 (1913). Accordingly, the policy is not invalidated for lack of a binding application nor by the failure of Ryan to deliver the policy to Ms. Keeler.


author: Shea, J.

text:
    Julius Gold v. Paul L. Newman et al.
    (13553)
    (13554)
    Shea, Callahan, Glass, Covello and Hull, Js.
    Argued March 29
    decision released June 27, 1989

      Wesley W. Horton, with whom were Kimberly A. Knox, Arnold J. Bai and, on the brief, W. Patrick Ryan and Charles A. Deluca, for the appellants (defendants).

      Joram Hirsch, with whom, on the brief, were Richard L. Albrecht and Joseph G. Walsh, for the appellee (plaintiff).
   Shea, J.

In this action for breach of contract and other related claims, the court declared a mistrial upon a motion by the defendants because the jury had been exposed to evidence not admitted at trial. Some of the jurors, who had commenced deliberations on the case following a trial of eighteen days, declared that they were unable to disregard certain depositions inadvertently given to the jury during their deliberations, despite the court’s instructions to do so. After the mistrial, the defendants moved for judgment in accordance with their previous motions for a directed verdict. The court considered the merits of the motions but denied them.

Each defendant appealed to the Appellate Court from the “[fjinal judgment and denial of motion for judgment in accordance with motion for directed verdict.” The plaintiff moved to dismiss the defendants’ appeals for lack of a final judgment and the Appellate Court granted the motions without opinion or hearing. This court granted the defendants’ petitions for certification to appeal limited to the issue: “Can a defendant appeal from the denial of a motion for judgment notwithstanding the failure of a jury to return a verdict?” The essential issue is whether there yet has been a final judgment in the trial court. We conclude that the denial of the defendants’ motions does not constitute a final judgment and affirm the judgment of the Appellate Court dismissing the appeals.

General Statutes § 52-263 provides for a right of appeal “from the final judgment of the court ... or from the decision of the court granting a motion to set aside a verdict.” Practice Book § 4000, in effect since October 1,1986, provides similarly. Prior to that date, for a period commencing November 1, 1963, the rule of practice had provided that an aggrieved person “may appeal from the final judgment of the court ... or he may appeal from a decision setting aside a verdict . . . or from the denial of a motion for judgment notwithstanding the failure of the jury to return a verdict.” Practice Book (1963) § 600; Practice Book (1978) § 3000. The statutes authorizing appeals, however, have never expressly provided for an appeal from the denial of a motion for judgment notwithstanding the failure to return a verdict as an alternative to an appeal from a final judgment. Public Acts 1929, c. 301, §§ 1, 4, 5; General Statutes (Sup. 1943) §§ 728g and 729g; General Statutes (Rev. to 1987) § 52-263. On the other hand, the granting of a motion to set aside a verdict has been an alternative statutory ground for appeal since 1929, and the rules of practice have provided similarly since 1943. Practice Book (1934) § 334 (1943 insert).

From this history the parties draw diverse conclusions. The plaintiff argues that the 1986 Practice Book revision, which omitted the alternative of appealing “from the denial of a motion for judgment notwithstanding the failure of the jury to return a verdict,” signifies that this court was exercising its rulemaking authority to eliminate that ground for taking an appeal, leaving a “decision of the court granting a motion to set aside a verdict” as the only court action not qualifying as a final judgment from which an appeal is allowed. Section 52-263 also provides for an appeal from the setting aside of a verdict as the only nonfinal judgment basis for appeal.

The defendants contend that the sole purpose of the 1986 amendment was to conform the rule of practice to the statute in accordance with our frequent declarations that the right of appeal is wholly statutory. See, e.g., Durso v. Misiorek, 200 Conn. 656, 660, 512 A.2d 917 (1986) (“[i]t is well established that the right to appeal is purely statutory and is accorded only if the conditions fixed by statute are met”); In re Investigation of the Grand Juror, 188 Conn. 601, 605, 452 A.2d 935 (1982) (“[tjhe right of appeal exists only by virtue of statutory authority”); Etchells v. Wainwright, 76 Conn. 534, 538, 57 A. 121 (1904) (“[ejxcept as we retain the common-law remedy by writ of error, the entire system of appellate procedure, and generally the proceedings for procuring new trials, are in this State governed by statute”). From this historic recognition of the right of appeal as wholly statutory in origin, the defendants infer that the various changes in the rule of practice concerning the right to appeal were simply interpretations of the statutes creating that right, and, to the extent that the rule has included certain orders not specified in the statute as alternatives to a final judgment, these interpretations indicate that this court viewed those grounds for appeal as constituting final judgments. The defendants maintain, therefore, that the 1986 Practice Book amendment, omitting the denial of a motion for judgment notwithstanding the failure to return a verdict as an alternative ground of appeal, as well as other grounds for appeal included in the rule since 1963, was intended to leave this court free to interpret the term “final judgment” in the appeal statute on a case-by-case basis rather than by rulemaking, as it had done in 1963.

We agree with the defendants that the 1986 amendment was intended to remove restrictions implied by the 1963 rule on the authority of this court to decide through the normal judicial process of statutory interpretation what constitutes a final judgment within the meaning of the appeal statute. We conclude, however, that our precedent as well as the various policy considerations that must guide our determination of whether there has been a final judgment militate against treating the denial of a motion for judgment notwithstanding the failure to return a verdict as a basis for an appeal.

The defendants have cited no case in which this court has held that an appeal may be taken from the denial of such a motion. For precedent they rely mainly upon the inclusion of this ground for appeal in the rule from 1963 to 1986 as an implied interpretation of the term “final judgment.” Since the purpose of the 1986 amendment was to return to standard adjudicative practice in interpreting this statutory language, however, we are not greatly impressed by authority based upon a deviation from that practice.

The denial of a motion for judgment notwithstanding the failure of a jury to return a verdict does not satisfy the criteria for a final judgment that we have heretofore recognized. It does not terminate a separate and distinct proceeding or so conclude the rights of parties that further proceedings cannot affect them. State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983); Prevedini v. Mobil Oil Corporation, 164 Conn. 287, 292, 320 A.2d 797 (1973). In this case the order leaves in effect the declaration of a mistrial, and a second trial in the normal course of events will follow. No rights of the parties have been yet determined.

The defendants suggest that a second trial may foreclose review of the issues raised by their motion for judgment, which was based on the claimed insufficiency of the evidence at the first trial. They point out that the deficiencies relied upon in their motion may be cured at a second trial. We have recognized that a ruling, otherwise interlocutory, may be treated as a final judgment for the purpose of an appeal when “the right asserted would be lost, probably irreparably, unless interlocutory review was permitted.” State v. Spendolini, 189 Conn. 92, 95, 454 A.2d 720 (1983); see State v. Longo, 192 Conn. 85, 89-93, 469 A.2d 1220 (1984). Practice Book § 4000, however, provides that “[i]f a party is aggrieved by the decision of the court or judge upon any question or questions of law arising in the trial. . . that party may appeal from the final judgment . . . . ” If the defendants were entitled to have their motions for judgment granted, they undoubtedly would be aggrieved by the failure to have granted those motions at the first trial, if the second trial should result in a judgment against them. State v. Seravalli, 189 Conn. 201, 208, 455 A.2d 852, cert. dismissed, 461 U.S. 920,103 S. Ct. 2076, 77 L. Ed. 2d 291 (1983); see State v. Powell, 186 Conn. 547, 554, 442 A.2d 939, cert. denied sub nom. Moeller v. Connecticut, 459 U.S. 838, 103 S. Ct. 85, 74 L. Ed. 2d 80 (1982).

Our most applicable precedent is the case of State v. Aillon, 182 Conn. 124, 126, 438 A.2d 30 (1980), cert. denied, 449 U.S. 1090, 101 S. Ct. 883, 66 L. Ed. 2d 817 (1981), in which the defendant appealed the denial of his motion for a judgment of acquittal after a mistrial had been declared because the jury could not reach a verdict. We dismissed the appeal for lack of a final judgment, except for the claim of double jeopardy, which we were constitutionally obliged to review. Id., 126 n.2, citing Benton v. Maryland, 395 U.S. 784, 793-96, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969); see State v. Aillon, 189 Conn. 416, 420, 456 A.2d 279, cert. denied, 464 U.S. 837,104 S. Ct. 124, 78 L. Ed. 2d 122 (1983). The federal courts have similarly refused to treat denials of motions based on insufficiency of the evidence following a mistrial as appealable judgments. Dostal v. Baltimore & O. R. Co., 170 F.2d 116,117-18 (3d Cir. 1948); Stewart v. Roberts, 154 F.2d 697 (D.C. Cir. 1946). Most of the state courts that have considered the question, in the absence of a statute or court rule to the contrary, have reached the same conclusion. Gore v. Hansen, 59 So. 2d 538, 539 (Fla. 1952); Israel v. Lawrence, 126 Kan. 586, 587, 270 P. 602 (1928); Johnson v. Burmeister, 176 Minn. 302, 303-304, 223 N.W.146 (1929); Kramer v. United States Fidelity & Guaranty Co., 212 App. Div. 644, 645, 209 N.Y.S. 419 (1925); Storman v. District Court of Pierce County, 76 N.D. 713, 718-19, 38 N.W.2d 785 (1949); Parham-Thomas-McSwain, Inc. v. Atlantic Life Ins. Co., 106 S.C. 211, 213-14, 90 S.E. 1022 (1916); annot., 40 A.L.R.2d 1284; see also annot., 57 A.L.R.2d 1198.

In the analogous circumstance, when a motion to set aside a verdict is granted and a new trial is ordered, we have not regarded the decision granting such relief as a final judgment. Marcil v. Merriman & Sons, Inc., 115 Conn. 678, 163 A. 411 (1932). “The rights of the parties have not been finally foreclosed by that ruling; they are still in court; the case is still open; judgment may still be rendered in favor of either.” Id., 680. Since 1929, however, the appeal statutes have allowed an appeal from the setting aside of a verdict in a civil case for insufficient evidence; Public Acts 1929, c. 301, § 5; and, since 1943, from the setting aside of a verdict for any reason, as alternatives to the final judgment basis for appeal. General Statutes (Sup. 1943) § 728g. Similarly, the granting of a motion for a new trial, which opens the judgment previously rendered, does not qualify as a final judgment from which an appeal may be taken. Hoberman v. Lake of Isles, Inc., 138 Conn. 573, 575, 87 A.2d 137 (1952); see State v. Asherman, 180 Conn. 141, 143-47, 429 A.2d 810 (1980).

The defendants’ basic argument is that, although the policy against piecemeal litigation embodied in the final judgment rule ordinarily serves the goal of judicial efficiency, in this case it does not, because a second long trial might be avoided by resolving now the issue of the sufficiency of the evidence presented at the first trial. Procedural rules, however, cannot be tailor-made for each case. The legislature, by creating specific alternatives to a final judgment as a basis for appeal, has implicitly rejected other grounds for departing from the final judgment rule. This court, in deciding what constitutes finality for the purpose of an appeal, has recognized that some court actions, as a practical matter, have such great impact on the rights of the litigants that an appeal must be allowed to preserve those rights. State v. Moeller, 178 Conn. 67, 420 A.2d 1153, cert. denied, 444 U.S. 950, 100 S. Ct. 423, 62 L. Ed. 2d 320 (1979) (double jeopardy claim); E. J. Hansen Elevator, Inc. v. Stoll, 167 Conn. 623, 628, 356 A.2d 893 (1975) (prejudgment remedy orders); Hiss v. Hiss, 135 Conn. 333, 336, 64 A.2d 173 (1949) (pendente lite support order). The fact that a second trial will ordinarily entail additional expense to the parties does not measure up to the circumstances we have heretofore regarded as having such a serious effect upon the rights of the parties that an appeal is warranted.

From the viewpoint of efficient court administration alone, the allowance of appeals from the denial of a motion for judgment because of insufficient evidence would create the opportunity for an interlocutory appeal in every case where a mistrial is declared and such a motion is made. Such motions are often made in civil cases and even more frequently in criminal cases. The resolution of the case in the trial court would be delayed for an extended period of time while the appeal was pending. Even in this case, in which counsel have processed the appeal with commendable diligence, a delay of about eleven months has transpired since the decision denying the defendants’ motions, and their merits have not yet been considered on appeal. The potential for delay in the disposition of cases in the trial court poses difficult problems relating to the availability and memory of witnesses at the second trial, the preservation of evidence and, in criminal cases, the unavoidable disparity in the treatment of those defendants who are able to post bail while awaiting trial and those who cannot.

The defendants contend that some gain in trial court efficiency will be achieved by avoiding a second trial in those instances where, on appeal, the trial court’s ruling on such a motion is overturned and judgment is directed. According to our experience, however, it is the rare case in which a trial court’s determination that the evidence was sufficient to submit the case to a jury has been upset on appeal. Thus, the likelihood of any significant gain in trial court efficiency from allowing appeals from such rulings following a mistrial is substantially outweighed by the likelihood of an increase in the number of meritless appeals resulting from the opportunity to delay the disposition of a case that would be afforded if we were to treat the denial of the defendants’ motions as a final judgment. We conclude that the Appellate Court properly dismissed the appeals.

The judgment of the Appellate Court is affirmed.

In this opinion the other justices concurred.

       “[General Statutes] See. 52-263. appeals from superior court, exceptions. Upon the trial of all matters of fact in any cause or action in the superior court, whether to the court or jury, or before any judge thereof when the jurisdiction of any action or proceeding is vested in him, if either party is aggrieved by the decision of the court or judge upon any question or questions of law arising in the trial, including the denial of a motion to set aside a verdict, he may appeal to the court having jurisdiction from the final judgment of the court or of such judge, or from the decision of the court granting a motion to set aside a verdict, except in small claims cases, which shall not be appealable, and appeals as provided in sections 8-8, 8-9, 8-28 and 8-30.”

       “[Practice Book] Sec. 4000. (Formerly Sec. 3000). right op appeal “If a party is aggrieved by the decision of the court or judge upon any question or questions of law arising in the trial, including the denial of a motion to set aside a verdict, that party may appeal from the final judgment of the court or of such judge, or from a decision setting aside a verdict, except in small claims cases, which shall not be appealable, and appeals as provided in Gen. Stat. §§ 8-8, 8-9, 8-28 and 8-30.”

       The right of a defendant who has been convicted in the trial court to be released on bail while his appeal is pending is not nearly as great as his right to such release while awaiting trial, because the conviction has removed the presumption of innocence. “Such bail is entirely disassociated from the preconviction presumption of innocence, is not authorized by any constitutional requirement but only under . . . the General Statutes . . . and should be granted with great caution. ...” State v. Menillo, 159 Conn. 264, 269, 262 A.2d 813 (1970); State v. Chisolm, 29 Conn. Sup. 339, 341, 287 A.2d 389 (1971); see Practice Book §§ 658, 908.