CONNECTICUT BAR JOURNAL
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ConneCtiCut
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VOL. 83 NO. 2, PP 95-196
Leading Articles
2008 developments in
Connecticut Business Entity Law . . . . . . . . . . . . . . . . . . . . . . Ernest M. Lorimer
Workers’ Compensation
developments 2007-2009 . . . . . . . . . . Robert J. Enright and John P. Clarkson
Commercial Litigation:
The Year in Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Thomas J. Sansone
2008 developments in
Connecticut Estate and Probate Law . . Jeffrey A. Cooper and John R. Ivimey
developments in
Connecticut Criminal Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . Timothy H. Everett
JUNE 2009
VOLUME 83 NO. 2
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CONNECTICUT BAR JOURNAL
VOLUME 83
JUNE 2009
NUMBER 2
JACK G. STEIGELFEST, Editor-in-Chief
Howard Kohn Sprague & FitzGerald LLP
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SENIOR TOPICAL EDITORS
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Steven J. Errante, New Haven
Michael F. Ewing, Bridgeport
Michael D. Fox, Waterbury
Elizabeth P. Gilson, New Haven
Leslie I. Jennings-Lax, New Haven
Domenic D. Perito, Hartford
James H. Lee, Fairfield
Eugene A. Marconi, East Hartford
Mark Oland, Hartford
Brennan T. Price, Hartford
Honorable Robert Satter, Avon
Thomas M. Sheehan, Boston, Mass.
James Francis Sullivan, Hartford
Ernest F. Teitell, Stamford
James E. Wildes, North Haven
L. Kay Wilson, Ellington
Robert J. Yamin, Danbury
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TABLE OF CONTENTS
Page
2008 DEVELOPMENTS IN
CONNECTICUT BUSINESS ENTITY LAW ............................Ernest M. Lorimer
95
WORKERS’ COMPENSATION
DEVELOPMENTS 2007-2009 ...............Robert J. Enright and John P. Clarkson
105
COMMERCIAL LITIGATION:
THE YEAR IN REVIEW .......................................................Thomas J. Sansone
131
2008 DEVELOPMENTS
IN CONNECTICUT ESTATE
AND PROBATE LAW ...............................Jeffrey A. Cooper and John R. Ivimey
141
DEVELOPMENTS IN
CONNECTICUT
CRIMINAL LAW......................................................................Timothy H. Everett
163
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2009]
2008 developments in connecticut business entity law
95
2008 DEVELOPMENTS IN CONNECTICUT BUSINESS
ENTITY LAW
B Y E RNEST M. L ORIMER *
This article will discuss developments in 2008 relating to
Connecticut business entities: corporations, limited liability
companies, limited partnerships, limited liability partnerships, general partnerships and statutory trusts. A down
economy can be expected to produce litigation testing limitations on liability and conflicting directions, and while it is
probably too soon to expect to have seen any effect in the
2008 case law, the number of interesting cases is significantly reduced from last year.
I. S ECRETARY O F T HE S TATE ’ S O FFICE
As in prior years, the bulk of new entities created in
Connecticut in 2008 were limited liability companies. The
following table sets out these statistics:1
ENTITY
Corporation
LLC
Entities
Created
In 2008
Domestic
1,652
1,893
Foreign
2,145
1,419
19,978
8,444
2,062
727
60
148
222
127
Domestic
64
52
Foreign
20
9
Domestic
24
38
3
0
Domestic
Foreign
LP
Domestic
Foreign
LLP
Statutory Trust
Entities
Withdrawing
in 20082
Foreign
* Of the Stamford Bar.
1 These numbers were obtained from the Commercial Recording Division of
the Secretary of the State’s office.
2 Excludes entities merging into other entities.
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CONNECTICUT BAR JOURNAL
[Vol. 83
These figures represent a significant decline in the number of new entities formed, and a significant increase in the
number of entities withdrawing, in 2008 as compared to
2007. Part of this may be due to the economic climate and
the slowing of transactional matters (particularly insofar as
statutory trusts are involved). As has been the case for several years, the overwhelming preference for the limited liability company form of entity continues.
II. C ASE L AW D EVELOPMENTS I NVOLVING C ORPORATIONS
As explored in last year’s survey article, the early stages of
litigation often test a court’s subject matter jurisdiction, often
requiring the court to explore the nature of business entities
at an interesting theoretical level. An example is anderson
sunnyside Farm assoc. v. Frank verderame constr., inc.3
The second paragraph of the opinion foreshadows this: “In
the tenth count, the plaintiff, Anderson Sunnyside Farm
Associates, alleges that it is a Connecticut partnership, which
became a co-venturer with defendant Frank Verderame
Construction, Inc., in a joint venture operating as East Haven
Elderly Site, Inc.” The purpose of the joint venture was to
build residential housing on land owned by the principal of
the construction company and, apparently, also East Haven
Elderly Site, Inc. The land was leased to the joint venture but
the lease was terminated and sold to third parties, no doubt
making the joint venture impracticable. The plaintiff brought
a claim against the new owners on behalf of the joint venture
to quiet title. The defendants moved to dismiss on the
grounds that the plaintiff did not have standing. One can see
that the phrase “joint venture operating as a” corporation is
going to lead to trouble: was the joint venture the corporation, a partnership among the parties, or something else, and
who had been the lessee? The court did not feel the need to
distinguish between the corporation and the joint venture,
although one senses the corporation was the lessee. It held
3
No. X09CV004034010S, 2008 WL 2096817 (Conn. Super. Ct. April 24, 2008).
2009]
2008 developments in connecticut business entity law
97
that the plaintiff had not alleged that it was a shareholder of
the corporation or taken the steps necessary under the
Connecticut Business Corporation Act to bring a derivative
action on behalf of the corporation, so the plaintiff did not
have standing on that theory. Then it viewed the joint venture
among the parties as a general partnership, and, since under
the Uniform Partnership Act the partners did not have an
interest in the partnership’s property, the plaintiff could not
bring a direct action against the third parties on behalf of the
partnership. Unexplored was a derivative action on the part
of the partnership.
Last year’s survey article took note of trustees of conn.
pipe trades local 777 Health Fund v. nettleton mech.
contractors, inc.,4 which found that a corporate officer who
paid some corporate bills but not a contribution to an ERISA
plan was personally liable for the unpaid contribution. The
court found the obligation to pay was a plan asset, based on
language in the plan, and the exercise of discretion not to pay
over the plan asset was a breach of fiduciary duty. Other
courts appear to be going in the direction of limiting this
view, if they subscribe to it at all, to plans that have specific
language that would support the finding that unpaid contributions were a plan asset.5 The lesson here is for a contributor to focus carefully on the plan’s definition of plan assets.
In circumstances involving multi-employer plans this will not
be easy, because the contributor will not necessarily have
access to the plan documents themselves.
In Halo tech Holdings, inc. v. cooper,6 the distinction
between a derivative claim and a direct claim was again
posed as a standing issue. There, the venture capital owner
of a business entered into a letter of intent for a managementled buyout at a price of $17 million. It was alleged that man4
478 F.Supp.2d 279 (D.Conn. 2007).
see In re Parker, 388 B.R. 11 (Bankr.N.D.N.Y May 7, 2008) and In re
Brobeck, Phleger & Harrison, LLP, No. 03-32715 DM, 2009 WL 780885
(Bankr.N.D.Cal. February 23, 2009), and the cases cited therein.
6
No. 3:07-CV-489 (AHN), 2008 WL 4080081 (D.Conn. August 29, 2008).
5
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agement conspired to scare away other bidders for the business and to reduce its apparent value, and then offered $14.5
million. Under financial pressure, the owner sold the business to a different group for $16 million and declared bankruptcy. It then brought a direct claim against the management group and its backers. The court found that allegations
that management had driven the value of the company down
did not state a claim different and apart from the damage to
the company, and thus could only be brought derivatively.
However, having sold its shares, it appeared the former owner
could no longer maintain a derivative action. This raises the
interesting possibility that the new owner, having bought at
the depressed price, might be able to bring the derivative
action and increase the value of its newly acquired company.
A foreign corporation transacting business in Connecticut
without a certificate of authority may not maintain an action
in a Connecticut court until it qualifies. In trevek enter., inc.
v. victory contracting corp.,7 a foreign corporation sought to
avoid that requirement by assigning a claim to a newly
formed Connecticut corporation. Connecticut General
Statutes Section 33-921(b) deals with this as follows:
The successor to a foreign corporation that transacted business in this state without a certificate of authority and the
assignee of a cause of action arising out of that business may
not maintain a proceeding based on that cause of action in
any court in this state until the foreign corporation or its successor obtains the certificate.
The plaintiff argued that as a Connecticut corporation it
was impliedly exempt from the restriction. The court turned
to the Official Comments to the Model Business Corporation
Act, which include the following explanation:
Section [33-921(b)] prevents evasion of Section [33-921(a),
the bar to maintaining an action] by an assignment of a claim
on which the foreign corporation is barred from bringing suit
under section [33-912(a)]. If the successor has acquired all or
substantially all of the assets of the foreign corporation, the
successor may maintain suit after it has qualified. In the case
7
107 Conn.App. 574, 945 A.2d 1056 (2008).
2009]
2008 developments in connecticut business entity law
99
of all other assignments, the foreign corporation itself must
obtain a certificate of authority before the assignee may
maintain suit on the claim. The phrase “all or substantially
all” has the meaning set forth in the Official Comment to section [33-830, which at that time dealt with the sale of all or
substantially all of a corporation’s assets in the ordinary
course without shareholder approval].
Because the plaintiff had not acquired all or substantially all
the assets of the foreign corporation, it was not a successor.
Stepping carefully, the court declined, under the circumstances and on the record before it, where the assignee was not
in existence at the time the foreign corporation transacted the
business, to excuse compliance in the case of a Connecticut
corporate assignee.
Reference to the Official Comments for interpretive guidance is exactly what the propounders of the Connecticut
Business Corporation Act intended, especially to the version
prepared by the Connecticut Bar Association’s Business Law
Section containing comments specifically with regard to
Connecticut matters, as the court did here.8 It seems straightforward that the assignment of a claim to a subsidiary newly
formed for the purpose of bringing a claim is certainly the kind
of evasion that the drafters had in mind. The Official Comment
comes from the other extreme; for unless the assignee is a “suc8
One complication is that the Model Business Corporation Act and its commentary are continually evolving, and Connecticut has been adopting those evolving provisions from time to time. In 1999 the MBCA was amended to remove the
concept of “all or substantially all” as a test of whether shareholder approval is
required, and substituted the concept of a “significant continuing business activity.”
Connecticut adopted these amendments in 2003. If one wanted assistance in interpreting Section 33-830 as revised, the Business Law Section’s version of the
Official Comment, circa 1994, would be of little help and one should look at the version of the Official Comment at the time these sections of the MBCA were amended. But where, as here, the court desired assistance in interpreting Section 33-921,
which was not amended, looking at the Business Law Section’s version of the
Official Comment was probably more appropriate. To make things even more confusing, when the 1999 MBCA amendments were adopted, the Official Comment to
the MBCA equivalent of § 33-921 was changed (but not the language of the section
itself) to more clearly link “successor” to one acquiring a claim in a transaction subject to shareholder approval. (Gone, apparently, is the concept of acquiring all or
substantially all the assets in a transaction in the ordinary course of business.) It is
thus unclear whether a successor for purposes of § 33-921(b) now is one acquiring
all or substantially all the assets of a predecessor, as the trevek court noted, or one
acquiring assets in a transaction subject to shareholder approval.
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cessor” the foreign corporation must qualify. “Successor” is a
term that does not appear elsewhere in the Connecticut
Business Corporation Act in this context. The nearest corollary
may be in tort law governing when the acquirer of a business is
liable for preexisting product liability claims. The Official
Comment cited by the court impliedly equates the term “successor” in the statute as meaning an entity acquiring all or substantially all of the assets of a corporation, a concept that is not
exactly in the statute. The comment then refers one to Section
33-830 for a meaning of “sale of all or substantially all” of a
corporation’s assets. This is where the Official Comments discuss the concept for both sales in the regular course of business
and sales under Section 33-831 that are not in the regular course
of business, and whether shareholder approval is required.
Whether shareholder approval is required or not involves issues
and considerations entirely different from whether one is a successor, and probably also different from whether the foreign
corporation is evading the qualification requirement. This is a
strange link and not necessarily good policy. Suppose Engulf
& Devour Inc., a very large foreign conglomerate and not qualified through some oversight, were to sell a small Connecticut
division to its employees, who created a Connecticut corporation to acquire the assets. By no measure would the new entity
have acquired all or substantially all of the foreign corporation’s
assets, but very possibly it could be considered the successor to
the division. If a claim now arose, it is unlikely the Connecticut
corporation could force the foreign corporation to qualify to
transact business. Or, consider a foreign corporation formed to
originate equipment leases nationwide, which it packages into
bundles and sells in the ordinary course into investment vehicles (say, a Connecticut statutory trust). Some of those leases
turn out to be in Connecticut. Is it now the case that those leases cannot be enforced in Connecticut in the hands of the trust,
without the foreign corporation qualifying?9 In neither case
would evasion seem to be involved, but third parties could be
severely damaged in the absence of appropriate indemnities or
9
Something like this appears to have happened in leasecomm corp. v. Renaissance auto care, inc., 122 N. C. App. 119, 468 S. E. 2d 562 (1996).
2009]
2008 developments in connecticut business entity law
101
put rights. Why should those questions depend on whether
shareholder approval was required?
The Connecticut Business Corporation Act’s enforcement
mechanism is the prevailing rule; one may bring an action
without qualifying, but may not maintain it without qualifying
if qualification was necessary. It may be thought that the consequences of failing to qualify are not that severe, because one
can always go back and cure the problem if necessary. Even
where it is customary for formal representations to be made as
to qualification, such as in loan agreements or acquisition
agreements, a materiality exception is often made, and the
consequences of a failure may not be given much attention.
But a party acquiring an interest in a contract or claim,
whether by obtaining a security interest or acquiring a business, or just an asset, should give this significant attention.
Without the ability to force a foreign corporation to cure the
problem or an adequate indemnity (taking into account any
time limitation on the indemnity), it may be unable to enforce
the claim as against a third party.10
III. C ASE L AW D EVELOPMENTS I NVOLVING
L IMITED L IABILITY C OMPANIES
Last year’s survey article noted bRJm, llc v. output sys.,
inc.,11 which dealt with whether a limited liability company
could enforce a contract made on its behalf prior to its formation, and noted that, in the absence of a limited liability company equivalent to General Statutes Section 33-638, it was
unclear whether the promoters of a company to be formed
would be liable on such a contract. In mastroianni v. Fairfield
county paving, llc,12 that question was almost posed. It
10
The trevek court introduces the temporal question of whether it might make a
difference if the assignee was in existence before the claim was brought, although that
concept does not appear in the statute or the Official Comment. Another temporal question is whether, if the foreign corporation qualifies retroactively but has no further need
to be qualified, it can withdraw, since “maintaining” an action alone does not require qualification. state v. mauer, 850 S. W. 2d 357 (Mo. 1993) held the foreign corporation had
to continue to be qualified. And what if the foreign corporation has dissolved and cannot
qualify at all?
11
100 Conn. App. 143 (2007), cert. denied, 282 Conn. 917, 925 A. 2d 1099 (2007).
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[Vol. 83
involved a lease signed by two persons doing business as a
corporation. At some point they formed a limited liability
company that occupied the premises. After termination of the
lease, the landlord brought an action against the limited liability company and the two principals. The court found the
two principals liable under the lease, because as signed it did
not clearly specify the principals were acting in a representative capacity for the corporation, and Section 33-638 would
also operate to impose liability. It then went on to hold the
limited liability company, based on its occupancy at least after
the expiration of the lease, liable to the plaintiff. What is
interesting is that the court then held the limited liability company liable for breach of the lease, as if it had been signed on
its behalf, as well as for holdover occupancy. So the principals and the limited liability company ended up with liability,
although whether they would have been liable but for the confused circumstances of the execution is still unanswered.
Foreign corporations not qualified to transact business are
subject to long-arm jurisdiction under General Statutes
Section 33-929(d). Foreign partnerships, “foreign voluntary
associations” and individuals are subject to long-arm jurisdiction under General Statutes Section 52-59b(a). What then of
a foreign limited liability company that has not registered?
General Statutes Section 34-233(b) provides that it will be
deemed to have appointed the Secretary of the State as its
agent for service of process, but it does not quite say that it is
subject to suit in Connecticut, as Section 33-929(d) does, or
that a Connecticut court may exercise personal jurisdiction, as
Section 52-59b(a) does. In RJm aviation assoc., inc. v. Gp
aviation servs., llc,13 the court, having been faced with the
question just two weeks before,14 noted that “it remains unset12
106 Conn. App. 330, 942 A.2d 418 (2008).
No. 3:06-CV-2007 (CFD), 2008 WL 918538 (D. Conn. March 28, 2008).
14
SS&C Tech., Inc. v. Providence Inv. Mgmt., LLC, No. 3:07-CV-484
(CFD), 2008 WL 691702 (D. Conn. March 12, 2008).
13
2009]
2008 developments in connecticut business entity law
103
tled whether a foreign limited liability company should be
treated as a corporation or a partnership for purposes of the
Connecticut long-arm statutes,” and referred to cases going in
both directions.15 Concluding that the result would be the
same either way,16 the court proceeded to analyze whether the
defendant was transacting business for purposes of those
long-arm statutes. Defendants are raising the third possibility, that a limited liability company is neither a corporation nor
a partnership, and there is no statutory long-arm jurisdiction.
The multiplicity of different business entities, particularly foreign entities, suggests that one reading could be that all business entities other than corporations and partnerships are “foreign voluntary associations” governed by Title 52.17 The term
is not common, so there is little in the way of referents.18 The
legislative history of Section 52-59b does not shed light
15
Since Section 33-929 is part of the Connecticut Business Corporation Act,
which defines “corporation” and “foreign corporation” as corporations incorporated under the laws of Connecticut or another jurisdiction, respectively, one would
think that a limited liability company could not fall under its provisions. If one is
willing to allow that a “corporation” formed under the laws of another jurisdiction
can be an entity of any sort with enough of the features of a corporation (such as
limited liability), to treat it as such, then the definition is circular. As has been noted
before, the courts seem quite willing to extend existing provisions of corporation
law, such as piercing the corporate veil, to limited liability companies. It may not
be much of a stretch to include other kinds of foreign limited liability entities within the ambit of the term “foreign corporation.”
16
The two statutes are not entirely interchangeable. Section 33-929 allows
persons resident or with a place of business in Connecticut to sue a foreign corporation transacting business in the state. in re bayou Hedge Fund inv. litigation, 472
F.Supp.2d 534 (S.D.N.Y. 2007), was a case which started out in Connecticut but was
transferred to New York. There the court decided Section 33-929 governed
Connecticut’s long-arm jurisdiction over a New York “limited liability corporation”
(actually a limited liability company), and because of its terms a nonresident could
not invoke Section 33-929 to get jurisdiction over the New York limited liability
company in Connecticut. As a result, the New York limited liability company was
dismissed on jurisdictional grounds from the action that continued in the New York
courtroom with respect to its individual principals, as to whom Section 52-59b clearly applied. In this sense Section 33-929 grants a more limited long-arm jurisdiction.
17
The court also deals with a related question, namely the test for diversity
jurisdiction, and concludes that the citizenship of a limited liability company is for
diversity purposes tested by the citizenship of its members and not the state n which
the limited liability company is registered or has its principal place of business, thus
treating it as a partnership.
18
A “voluntary association” is a form of business entity in West Virginia, governed by the same statute as business trusts.
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CONNECTICUT BAR JOURNAL
[Vol. 83
on the meaning of the term.19 N.Y. C.P.L.R. Section 302, the
New York long-arm statute, uses the vague but more encompassing term “non-domiciliary,” a term that does show up in
passing in the original legislative history.20 It is understandable that the courts would focus less on whether it is under
one statute or the other, and be less accepting of the possibility that it falls within neither, than on whether an entity was
engaging in the conduct that satisfied the long-arm jurisdictional substantive test.
IV. C ONCLUSION
The past year was relatively quiet in terms of statutory
developments and case law.
19
The term was added by Section 25 of P.A. 04-240 and first appeared, without further explanation, in the substitute bill reported out favorably by the Judiciary
Committee of the General Assembly.
20
Conn. Gen. Ass. Proc. (Senate) 1969, p. 2509.
2009]
woRkeRs’ compensation developments 2007-2009
105
WORKERS’ COMPENSATION DEVELOPMENTS
2007-2009
B Y ROBERT J. E NRIGHT
AND
J OHN P. C LARKSON *
I. I NTRODUCTION
A. what is this thing called “comp”?
Connecticut’s workers’ compensation statute (the “Act”),
codified at Chapter 568 of Title 31, came into existence in
1913. The Legislature brokered what might be called a Great
Compromise between labor and management that entailed
radical changes in resolution of disputes that arose from
injuries at work. The civil justice system was divested of
jurisdiction over such disputes; the Workers’ Compensation
Commission was established in its stead.1 Recourse to the
Workers’ Compensation Commission became the exclusive—and, at least theoretically, expeditious—remedy for
injured workers; the heart of the Act is to get people treated
effectively and back to work promptly. In return, the Act
almost (but not quite) entirely shields employers from civil
liability for occupational injuries. The commission operates
as an autonomous adjudicative system; the commissioners
function essentially as administrative law judges. It has its
own appellate tribunal, the Compensation Review Board,
from which a large and impressive body of law has emerged.
This has not prevented a steady flow of appeals from decisions by the Board to the Appellate Court and, in turn, to the
Connecticut Supreme Court.
B. scope of this article
This article discusses most, if not all, Connecticut
Supreme Court cases, as well as many Appellate Court cases
that address workers’ compensation issues, on a chronologi* Both of the Hartford Bar.
1
see R. F. CARTER, D. CIVITELLO, J. M. DODGE, J. L. POMERANZ, L. D.
STRUNK, CONNECTICUT WORKERS' COMPENSATION LAW §1:2 (2009). This section
contains a useful summary of the genesis and early development of the Act.
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CONNECTICUT BAR JOURNAL
[Vol. 83
cal continuum from roughly 2007 through June 9, 2009. The
scope of the article is thus selective, not exhaustive. In selection of cases, as well as commentary on those cases, the writers have tried consciously to preserve a balanced perspective;
what matters is whether a given case might be important to
anyone with an interest in workers’ compensation litigation,
no matter whether that practitioner sits on either claimant’s
or respondent’s side of the conference table.
II. S UBJECT M ATTER J URISDICTION
As might be expected, this broad topic subsumes issues
from disparate legal contexts. One incident of injury might,
for example, create “conflicts”—or necessarily present
“choices”—over the applicability of laws of contiguous
states, for example, or even whether the jurisdiction of one
sovereign is exclusive, or concurrent with that of another. In
the past several years, Connecticut appellate tribunals have
addressed quite an array of jurisdictional issues.
A. subject matter Jurisdiction—basics
In mankus v. mankus2 the Appellate Court offered a short
primer on the elements of subject matter jurisdiction under
the Act. The sine qua non is an employer-employee relationship. Subject matter jurisdiction is not a “personal” right,
susceptible of waiver by the parties, but a challenge to the
commission’s authority to adjudicate, a challenge that (1)
may be raised at any time3 and (2) once raised, must be
immediately resolved.4
B. timeliness of Filing
Employers who argue that a claim has not been timely
2
107 Conn. App. 585, 946 A.2d 259, cert. denied, 288 Conn. 904, 953 A.2d
649 (2008).
3
Although there may be limits, as the Board found in kalinowski v. city of
meriden, 5028 CRB-8-05-11 (Jan. 24, 2007), in which it relied on three United
States Supreme Court decisions, city of sherill v. oneida indian nation of n.y., 544
U.S. 197, 217 (2005); cheney v. u.s. dist. court for d.c., 542 U.S. 367, 379 (2004);
and chapman v. county of douglas, 107 U.S. 348, 355 (1883), to derive the principle that laches may bar a claim if a party has “slept upon his rights…especially if
the delay has been prejudicial to the [other party].”
4
mankus, 107 Conn. App. at 589-90.
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filed typically couch such arguments as challenges to subject
matter jurisdiction. Timeliness issues often arise in occupational disease cases, and in Fredette v. connecticut air
national Guard 5 the Connecticut Supreme Court determined whether a dependent had perfected a claim for death
benefits by filing it within the limitations period for occupational disease, where the decedent had never filed a claim at
all. Justice Borden wrote a thoughtful, but unusually intricate majority opinion, holding that “the timely filing of any
compensable claim under the act has the effect of satisfying
the limitations period for all potential claims under the act . . .
the failure to file any compensable claim within the applicable limitations period would have the effect of barring all
claims under the act, irrespective of whether they yet had
become compensable.”6
Fredette must be read in conjunction with a companion
case, chambers v. electric boat corp.,7 which presented this
issue: whether, under the limitations periods applicable in
1979, a timely claim for death benefits under the federal
Longshore Act8 preserved the same claim under Chapter 568,
in the absence of any state filing. The long and the short of
chambers is that a timely federal claim did not preserve state
jurisdiction, because Chapter 568 mandates affirmative
notice of intent to pursue a claim under the state Act.9
C. concurrent Jurisdiction—Federal longshore act and
chapter 568/state act
In two companion cases, coppola v. logistec connecticut,
inc.10 and diblase v. logistec connecticut, inc.,11 the court
addressed a “jurisdictional” question that did not entail a
“conflict” between the state and federal statutory schemes,
but instead involved the “scope of exclusive federal jurisdic5
6
7
8
9
10
11
283 Conn. 813, 930 A.2d 666 (2007).
id. at 824, 838-39 (emphasis added).
283 Conn. 840, 930 A.2d 653 (2007).
Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. §901 et seq.
283 Conn. at 856.
283 Conn. 1, 925 A.2d 257 (2007)
283 Conn. 129, 925 A.2d 311 (2007).
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tion over maritime matters.”12 The claimant in coppola prevailed under the Longshore Act, and the court held that the
Longshore Act was not his “exclusive remedy”; concurrent
jurisdiction arose between the Longshore Act and the state
Act, once certain factual criteria were met, e.g., the injury
had to have occurred on the state’s territorial waters.13
D. choice/conflict of laws
In Jaiguay v. vasquez14 the Connecticut Supreme Court
had to grapple with the legal implications of a death in
Connecticut that led to civil litigation in Connecticut, where
death arose out of and in the course of New York employment, and where the New York workers’ compensation law,
in contradistinction to Connecticut’s, contains no motor vehicle exception to the exclusive remedy rule. The court concluded that when such a conflict of laws arises (or when a
“choice” of laws necessarily presents itself), separate analyses
must occur: a claim for workers’ compensation benefits in
Connecticut is analyzed differently from civil justiciability of
a tort case. In so doing, the court reversed Johnson v.
atkinson,15 decided only about a year before; this case did not
appreciate any distinction between two “general categories,”
namely, cases that involved only claims for workers’ com-pensation benefits in this state, and such cases as Jaiguay, where
a “tort” issue arose as a result of an exception to the exclusivity provisions of the applicable workers’ compensation
statute.16 The court reversed itself so adroitly, deploying a
masterly exposition of the evolution of Connecticut case law
on this issue, that it appeared not to be retreating, but merely
advancing in a different direction. The rule now for invocacoppola, 283 Conn. at 6 n. 4.
id. at 4-5. The summary above does not truly reflect the intricacy of this
opinion, which included a lengthy dissent from Justice Zarella. Both the majority
and dissenting opinions are exhaustively researched, with the majority chorus and
the dissenting voice engaged in academic debate over such issues as the evolution of
Professor Larson’s thinking over successive editions of his treatise on workers’ compensation law. see, e.g., 283 Conn. 22 n. 17, id. at 27 n. 21, and 283 Conn. 54 n. 9.
14
287 Conn. 323, 948 A.2d 955 (2008).
15
283 Conn. 243, 926 A.2d 656 (2007).
16
see Jaiguay, supra n. 14, at 323.
12
13
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tion of jurisdiction of the commission in Connecticut—actually, a variant of “concurrent” jurisdiction, since workers’
compensation claims can proceed in more than one jurisdiction—is this: “whether Connecticut’s relationship or interest is
sufficiently significant to warrant an award of benefits, and
that criterion is satisfied either when Connecticut is (1) the
place of the injury, or (2) the place of the employment contract, or (3) the place of the employment relationship.”17 The
court noted that the choice-of-law issue, where the tort action
arises from the exception to the exclusivity provisions of
Connecticut’s act—the other “general” category—involves
essentially an either/or proposition: the invocation of one
state’s law will exclude application of any other state’s law.18
E. appellate Jurisdiction
Late filing of a petition for review—such a petition is necessary to perfect an appeal to the Compensation Review
Board—does not abate appellate jurisdiction to hear a late
appeal, unless a timely motion to dismiss19 is filed; if no
timely motion to dismiss is filed, the Board retains discretion
to hear a late appeal. So held the Appellate Court in stec v.
Raymark industries, inc.20 In other words, an appellee can
waive a challenge to the timeliness of the appeal.21
Therefore, a late appeal is not void, but merely voidable.22
17
id. at 346 (emphasis in original). These jurisdictional alternatives were first
enunciated in cleveland v. u.s. printing ink, inc., 218 Conn. 181, 588 A.2d 194
(1991). Note, however, that the application of Connecticut jurisdiction to nonresident employees has been modified by the exclusion from the definition of employees set forth in CONN. GEN. STAT. § 31-275(9)(B)(vi) (2007).
18
Jaiguay, supra n. 14, at 347.
19
The requirement for a timely motion to dismiss lies not in the administrative regulations governing workers compensation appeals, CONN. AGENCIES REGS. §§
31-301-1 to 11, but rather derives from CONN. GEN. STAT. § 31-301(e) (2007), which
provides that "the procedure in appealing from an award of the commissioner [to the
CRB] shall be the same procedure employed in an appeal from the Superior Court
to the Supreme Court, where applicable," thereby incorporating PRACTICE BOOK §
66-8, which in turn provides that "[a]ny claim that an appeal . . . should be dismissed,
whether based on lack of jurisdiction, failure to file papers within the time allowed
or other defect, shall be made by a motion to dismiss the appeal or writ. Any such
motion must be filed . . . within ten days after the filing of the appeal . . . .”
20
114 Conn. App. 81, 99, 968 A.2d 960 (2009).
21
id. at 88.
22
id. at 99 (Lavine, J., concurring).
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stec was decided with a companion case, dechio v. Raymark
industries, inc.23 In that case the appellee did file a timely
motion to dismiss, and dismissal was upheld.24
While an untimely motion to dismiss might render a belated appeal only voidable, in dechio the Second Injury Fund
failed altogether to file notice of intent to appeal with the trial
commissioner and thus “did not attempt to preserve its right
of appeal.”25 The stec and dechio cases serve as a reminder
to those who wish to perfect appeals: one must be mindful, at
every step along the way, not only of rules and regulations
under Chapter 568, but also under civil rules of appellate procedure; those rules apply to appeals from trial decisions to
the board and from the board to the Appellate Court.26
Finally, workers’ compensation appeals to the Appellate
Court involve a final judgment requirement.27 The final
judgment requirement is characterized as implicating appellate subject matter jurisdiction.28
III. W HAT C ONSTITUTES A C OGNIZABLE C LAIM
U NDER T HE ACT – A ND W HAT B ENEFITS M AY B E AWARDED
One might crystallize the operation of the Act as follows:
employees who suffer injuries that arise out of and in the
course of employment are entitled to receive benefits in the
form of reasonable and curative medical treatment, as well as
monetary indemnity for lost wages and permanent injury.
Every element of that formulation, however, can spawn questions, e.g., who is an employee, what constitutes medical treatment, and how precisely does the phrase “arising out of and in
the course of employment” apply to atypical circumstances?
23
114 Conn. App. 58, 968 A.2d 450 (2009).
id. at 61.
25
id. at 68.
26
id. at n. 16.
27
Hummel v. Marten Transport Ltd., 282 Conn. 477, 484, 923 A.2d 657
(2007). see Part V., infra, for more detailed discussion of this subject.
28
id. n. 9.
24
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A. who is/is not an “employee”
In muniz v. allied community Resources29 the Appellate Court
held that, under General Statutes Section 31-275(9)(B)(iv),
an individual who was employed de facto as a personal care
assistant, but had not worked more than 25.75 hours per week,
was not a de jure “employee.” It recognized that this statutory “exclusion” rendered by operation of law ineligible an individual who might otherwise have qualified for benefits under
the Act—had she been working over 26 hours per week.30
Is the United States Postal Service an “employer” under
the Act, so that postal wages would be factored into calculation of a concurrent employment benefit? The Appellate
Court said “no” in lopa v. brinker international.31 While it
might make sense to recognize the USPS as an employer for
the limited purpose of providing concurrent employment
benefits,32 the definition of employer must be applied consistently throughout the entire Act. Because the Postal
Service is part of the federal government, and because the
federal government has not expressly consented to the jurisdiction of the Act, the Workers’ Compensation Commission
has no authority over it. As a result, the Appellate Court concluded that the United States Postal Service is not an employer within the meaning of General Statutes Section 31-275(10).
B. what constitutes “arising out of and in the course of
employment”
The Connecticut Supreme Court struck a blow for volunteer firefighters in evanuska v. city of danbury33 by extending the ambit of “fire duties” within the context of General
Statutes Section 7-314a, which provides that volunteer firefighters are covered under the Act if they are injured while
108 Conn. App. 581, cert. denied, 289 Conn. 927, 958 A.2d 159 (2008).
id. at 587.
31
111 Conn. App. 821, 829, 960 A.2d 1107 (2008), cert. granted, 290 Conn.
913, 964 A.2d 547 (2009) (certification is limited to the following issue: “Did the
Appellate Court properly conclude that the United States Postal Service is not an
employer under the Connecticut Workers' Compensation Act?”)
32
see CONN. GEN. STAT. § 31-310 (2007).
33
285 Conn. 348, 939 A.2d 1174 (2008).
29
30
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performing “fire duties.”34 In evanuska the court did not
limit the scope of Section 7-314(a) merely to firefighting or
training situations, but read it also to include such “duties” as
repairs and maintenance of the firehouse—which is how
claimant got hurt in this case; he was repairing the roof and
scaffolding collapsed.35 On the other hand, the court granted
certification in Hardt v. watertown36 only to affirm the
Appellate Court, which had held that injury to a volunteer
firefighter as a result of voluntary participation in physical
fitness activities did not constitute “training” under an ancillary statute, General Statutes Section 7-314a(a).37
An interesting parallel issue for the Appellate Court presented itself when an employee of Pratt & Whitney hurt herself when she fell on Pratt & Whitney grounds while walking
vigorously, for health reasons—exercise helped her to hold a
latent diabetic condition in check—during an unpaid lunch
break; this is the case of brown v. united technologies
corp.38 The Appellate Court found that the claimant's injury
was “an act incidental to employment”39 that arose out of and
in the course of the claimant's employment, but affirmed
denial of compensation, citing General Statutes Section 31275(16)(B)(i), which bars coverage for injuries that result
from an activity, the “major purpose of which is social or
recreational.”40 A serious question exists as to whether the
Appellate Court properly denominated, by operation of law,
the activity here as “recreational” where it was undisputed
that the “purpose” of the activity was at least to some extent
see CONN. GEN. STAT. § 7-314(a)(2007).
285 Conn. at 351, 362.
36
281 Conn. 600, 917 A.2d 26 (2007).
37
id. at 601-02..
38
112 Conn. App. 492, 963 A.2d 1027, cert. granted, 291 Conn. 906, 967
A.2d 1220 (2009)(certification is limited to the following issue: “Did the Appellate
Court properly determine that the bar to workers' compensation coverage found
within General Statutes § 275 (16)(B)(i) applied to preclude coverage for the plaintiff's injury?”).
39
see McNamara v. Hamden, 176 Conn. 547, 398 A.2d 1161 (1979) and
Mazzone v. Connecticut Transit Company, 240 Conn. 788, 694 A.2d 1230 (1997).
40
112 Conn. at 496. The board denied compensability on this basis: the injury
was not “incidental” to employment, and there was no “mutual benefit” to both parties from the walking. id.
34
35
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therapeutic and arguably of mutual benefit to the employer.
C. “injury” under the act
Under the Act injuries generally break down into three categories: discrete injury; repetitive trauma injury (carpal tunnel
syndrome, for example); and occupational disease. The
courts now recognize compensability of physical injuries,
e.g., myocardial infarction, that arise from stress at work.41 In
solonick v. electric boat corp.42 the Appellate Court clarified
some lingering misunderstanding about this by stating that, in
order to prevail on such claims, claimant need not prove that
the cardiac event was linked to some “sudden, unusual, and
unexpected employment factor”; such claims are analyzed
under the traditional proximate cause standard, namely,
whether the work activity contributed substantially in producing the injury.43
Occupational disease often exists with other, unrelated
disease processes. For discussion of the interplay of occupational pulmonary pathology and unrelated pulmonary pathology, see Part III. D., infra.
D. Responsibility for medical and indemnity benefits
Under the Act employers are responsible for providing
reasonable medical treatment for compensable injuries.44
Payment of indemnity benefits generally proceeds sequentially, as follows: an individual is eligible to receive temporary benefits, whether total or partial, until maximum medical improvement is reached, at which time eligibility for
“specific” benefits—compensation for permanent loss of
function to a scheduled body part—arises.
41
see, e.g., Chesler v. Derby, 96 Conn. App. 207, 215, 899 A.2d 624 (2006),
cert. denied, 280 Conn. 909, 907 A.2d 88 (2007).
42
111 Conn. App. 793 (2008), 961 A.2d 470, cert. denied, 290 Conn. 916, 965
A.2d 555 (2009).
43
id. at 799. see McDonough v. Connecticut Bank & Trust Co., 204 Conn.
104, 527 A.2d 664 (1987); and Jones v. Hamden, 129 Conn. 532, 29 A.2d 772
(1942). For further discussion of the proximate causation standard, please see Part
IV. B., infra.
44
see CONN. GEN. STAT. §31-294d(a)(1) (2007).
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The issue of compensation for permanent loss of lung
function in occupational disease cases can get complicated,
especially where the same lungs are compromised by (a)
restrictive pathology from occupational asbestos exposure
and (b) obstructive pathology from smoking. It was only a
matter of time before the Connecticut Supreme Court would
have to contend with this issue, and it did, in deschenes v.
transco,45 where it decided the issue of whether lung permanency had to be reduced—or “apportioned,” which the court
used synonymously with “reduced”—by permanency attributable to concurrently developing emphysema from smoking.46 The court ultimately held that the employer is entitled
to proportional reduction of its responsibility for permanency—and it bears the burden of proof on this issue47—where
the combined disability resulted from two concurrently
developing disease processes, one occupational, one not; and
where the conditions of claimant’s occupation have no “influence” on the development of the nonoccupational disease.48
“Put differently,” as the court wrote, “apportionment or
reduction of permanent partial disability benefits is appropriate only in those cases wherein different diseases, one of
which is occupational in nature, have combined to cause, in
effect, two different disabilities, even if they ultimately affect
the same bodily part or function.”49
Expiration of specific benefits, which are paid weekly
from the date of maximum medical improvement, does not
45
288 Conn. 303, 953 A.2d 13 (2008).
id. at 304-05.
47
id. at 321 n. 18.
48
id. at 321 (quotation marks and emphases added).
49
id. at 322-23. The cited opinion superseded an earlier opinion, reported at
284 Conn. 479, 935 A. 2d 625 (2007). The original deschenes opinion roiled the
workers’ compensation forum, and it led to a flurry of litigation activity, e.g.,
motions for reconsideration and reargument, applications to appear as amici curiae,
and so forth. In the new opinion the court concluded that the case was “correctly
decided” by the initial panel, but adverted to “several substantive changes” that it
made to the earlier decision. 288 Conn. at 305-06 n. 3. The procedural course of the
case, after it was originally decided, is set forth in footnote 3 of the superseding
opinion. These authors discern only one “substantive” change, namely, the addition
of this language to the superseding opinion: “We emphasize, however, that our conclusion herein is limited solely to the issue raised in this appeal, namely, the apportionment of permanent disability benefits.” 288 Conn. 321 n. 17.
46
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necessarily exhaust eligibility for compensation under the
Act. General Statutes Section 31-308a creates eligibility for
a wage differential/diminished earning capacity benefit,
based in part upon permanency. Most practitioners thought
that Section 31-308a eligibility had to be predicated upon
medical evidence of restricted earning capacity, but the
Appellate Court disabused them of that notion in mccarthy
v. Hartford Hospital.50 It decided that, inasmuch as claimant
had received ratings for permanency, the claimant’s disability rating, coupled with her testimony that her injuries affected her ability to find work within her capabilities, was
enough to support a claim for diminished earning capacity.51
In pizzuto v. commissioner of mental Retardation52 the
Connecticut Supreme Court opened the door to enhanced
Section 31-308a liability arising from a second relatively
minor permanent injury, where there had been an earlier
compensable injury, with significant permanency, yet without
diminished earning capacity. In that case the relatively minor
permanency from the more recent of the two successive
injuries constituted a “tipping factor” sufficient to establish a
diminished earning capacity caused by the combined effect
of the two injuries, so the earlier permanency factored
into the wage differential analysis under Section 31-308a.53
IV. P RACTICE B EFORE T HE WORKERS ’ C OMPENSATION
C OMMISSION
Those who practice before the Workers’ Compensation
Commission must consider the virtual free rein that commissioners enjoy under General Statutes Section 31-298.54 That
50
108 Conn. App. 370, 947 A.2d 1047, cert. denied, 289 Conn. 910, 957 A.2d
871 (2008).
51
id. at 376.
52
283 Conn. 257, 927 A.2d 811 (2007).
53
id. at 275. Although the decision contained no ruling on any apportionment
issues, the court strongly hinted in footnote 14 that if the claimant’s two injuries had
involved two different employers or insurers, the employer or carrier on the loss for
the most recent injury would have been liable for all of the § 31-308a benefits
awarded.
54
see Pietraroia v. Northeast Utilities, 254 Conn. 60, 756 A.2d 845 (2000).
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provision proscribes “formal pleadings”; it mandates adherence to the “rules of equity”; and it emancipates the commission from “ordinary common law or statutory rules of evidence or procedure.” Recent appellate decisions, however,
have formalized administrative “pleadings,” spawned a burgeoning motions practice, and subjected administrative decisions to stricter standards of evidence than what we have seen
in the past.
A. motions practice before the commission
In testone v. c.R. Gibson co.,55 the Appellate Court differentiated between a motion to correct and a motion for
articulation; the fact that claimant failed to request articulation from the trial commissioner precluded reviewability of
one of her claims for lack of an adequate record.56 Citing
cable v. bic corp.,57 the Appellate Court found that,
although there was no specific legal source for such a
motion, the commission, at both the trial and appellate levels,
has entertained them.58
B. evidentiary issues
As far as a hard appellate look at evidentiary rulings is
concerned, in dzienkiewicz v. dept. of correction59 the
Connecticut Supreme Court found no abuse of discretion
where the commissioner had refused to admit into evidence a
decision by the State Medical Examining Board that awarded
claimant disability retirement benefits on the basis of compensable injury. While noting that commissioners are not
bound by rules of evidence, the court nevertheless recognized
due process requirements must be honored.60
Due process of law operates as a brake on administrative
55
114 Conn. App. 210, 969 A.2d 179, cert. denied, 292 CONN. 914 (2009).
id. at 224.
57
270 Conn. 433, 854 A.2d 1057 (2004). This is a seminal case on the emergence of motions practice in the workers’ compensation forum.
58
testone, 114 Conn. App. at 224.
59
291 Conn. 214, 967 A.2d 1183 (2009).
60
id. at 220-21.
56
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discretion, as the Appellate Court duly noted in testone,61 an
opinion that offers a quick course on administrative due
process in workers’ compensation litigation. The court
decided that the commissioner deprived claimant of due
process by giving substantive consideration to three medical
reports that had been admitted solely on the issue of undue
delay—but this was considered “harmless error.”62
Returning to dzienkiewicz, one notes that the court analyzed the document as a putative admission of a party opponent63—even whether it was a judicial, as opposed to an evidentiary admission,64 an analysis that appears unnecessary
because resolution of the issue ultimately pivoted on whether
the document’s exclusion constituted an abuse of discretion
(it did not).65 It is hard to see how anyone could win a strict
abuse of evidentiary discretion argument at any appellate
level, especially where a cognizable due process claim can be
nullified by a harmless error analysis.
In dzienkiewicz, the court cited the decision of the
Appellate Court in marandino v. prometheus pharmacy,66 a
case that at least theoretically stands in appellate limbo. No
decision has emerged since certification was granted over a
year ago. In marandino the Appellate Court scrutinized the
medical evidence to see whether it supported compensability
of a left arm injury that led to a right knee injury; to prevent
a fall and protect the arm, which was recovering from surgery, claimant twisted the right knee.67 It concluded that
“insufficient subordinate facts” supported the medical opinion the claimant offered to establish the causal link between
testone, 114 Conn. App. at 217.
id. at 218-19.
63
The claimant argued, in effect, l’etat c’est l’etat.
64
see dzienkiewicz, 270 Conn. at 219, 221-22.
65
id. at 223.
66
105 Conn. App. 669, 939 A.2d 591, cert. granted in part, 286 Conn. 916, 945
A.2d 977 (The issue certified was: “Did the Appellate Court properly determine
that the claimant was entitled to temporary total benefits after having received permanent partial disability benefits pursuant to a voluntary agreement?”), cert. granted in part, 286 Conn. 917, 945 A.2d 977 (2008) (The second issue certified was:
“Did the Appellate Court properly determine that the workers' compensation commissioner improperly relied on the report by Vincent Santoro, an orthopedic surgeon?”).
61
62
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the arm injury and knee injury.68 The analysis focused on
“competent evidence”; mere testimony from claimant herself
was not enough to establish causation.69 Furthermore, the
medical report in question, in which the physician simply
stated that there was a direct link between the knee injury and
the arm injury, was characterized as speculative.70 The heart
of marandino is that the claimant bears the burden of providing competent expert medical evidence on causation, and
a medical opinion that lacks factual basis amounts only to
“speculation and conjecture.”71
C. standard of causation/Quantum of medical proof
In birnie v. electric boat corp.72 the Connecticut
Supreme Court gratuitously redefined the proximate causation standard applicable to workers’ compensation claims
while grappling with, and ultimately declining to answer, a
far narrower question: whether the Longshore Act standard of
causation, namely, “contributing factor,” as applied, is less
stringent than the state standard, namely, “substantial factor,”
such that the longshore judgment collaterally estops relitigation of causation in the state forum.73
First of all, one must look past the fact that the issue presented was not the issue decided. More than twenty pages
into the opinion the court explains why: the longshore decision provided “no indication of the scope of the standard
actually applied,” so without that information the court
refused to engage in any comparative analysis between the
id. at 673.
id. at 676-77.
69
id. at 678, 681.
70
id. at 680.
71
id. at 679, 681. Judge Mihalakos, dissenting in marandino, cited (and distinguished) dinuzzo v. dan perkins chevrolet Geo, inc., 99 Conn. App. 336, 913
A.2d 483, cert. granted, 281 Conn. 929, 919 A.2d 277 (2007). In dinuzzo, too, the
Appellate Court analyzed medical evidence and essentially concluded that it was
insufficient, for lack of factual basis. id., at 346. For example, a physician testified
that the claimant decedent had died of atherosclerotic disease, although that physician never ordered tests to determine whether the decedent had, in fact, suffered
from atherosclerotic heart disease. id., at 344. The dzienkiewicz opinion did not
mention dinuzzo. By the same token, inasmuch as dzienkiewicz was decided in
April of 2009, one might yet see a decision on marandino.
72
288 Conn. 392, 954 A.2d 28 (2008).
73
id. at 394-95 n. 2.
67
68
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longshore standard and the “substantial factor” standard
under the Act.74 Nor, for that matter, did the administrative
law judge articulate any applicable standard at all.75 Thus,
the case was remanded to the trial commissioner for further
proceedings.
While the birnie opinion seems to promise much and
deliver little, the many pages between presentation of the
issue and the court’s concession of its unreviewability contain
valuable kernels. The opinion provides a thorough review of
the evolution of the “substantial contributing factor” standard
that prevails in the workers’ compensation forum. Between
1916 and 1927 the quantum of evidence that claimant needed to show to establish causation evolved judicially from an
obligation to show “a causal connection,” to an obligation to
show “some causal connection,” then finally to an obligation
to show that work amounted to “a substantial factor” to
injury.76 The court sought to clarify the arguably elusive
meaning of “substantial.” “Substantial” does not mean
employment “must be the major contributing factor in bringing about the injury.”77 Nor must employment be “the sole”
contributing factor to injury.78 The court restated the proximate causation standard—arguably obiter dictum—but,
under the circumstances, a strong signal to practitioners—as
follows: “the substantial factor standard of causation simply
requires that the employment, or the risks incidental thereto,
contribute to the development of the injury in more than a de
minimis way.”79 Thus, the word “substantial” has been
reduced simply to mean “more than a trifle.”80
id. at 414 (emphasis added).
id. at 416-17 and n. 14. Noting that there is no universal causation standard
that is applied in every case for compensation under the Longshore Act, the court
declared itself unable to determine what standard the administrative law judge
applied in the federal forum and concluded that the trial commissioner's application
of the doctrine of collateral estoppel, as well as the Compensation Review Board's
subsequent affirmance, was improper. id. at 414-15.
76
id. at 410-11 (emphasis in original).
77
id. at 412 (emphasis in original).
78
id. at 412 (emphasis in original).
79
id. at 412-13 (emphasis in original).
80
The Supreme Court expressed concern that any attempt to provide a more
precise standard might prove “unnecessarily restrictive, and may inadvertently foreclose a claimant’s right to compensation.” id. at 413 n.11.
74
75
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V. A PPELLATE P RACTICE
For discussion of appellate subject matter jurisdiction, and
specifically recent cases that address whether an untimely
appeal is void or voidable, see Part II.E., supra. For discussion of applicability, on appeal, of a harmless error analysis
to a violation of procedural due process, on an evidentiary
issue, see Part IV. B., supra. And for discussion of appellate
motions/pleadings, see Part IV. A., supra.
As far as appellate practice is concerned, the final judgment rule remains something of a bugbear to workers’ compensation litigators. Appellate review is predicated upon
final judgment, and a question of reviewability arises when,
for example, the Compensation Review Board remands a
case to the commissioner “for further proceedings.”81 If such
proceedings on remand require “the exercise of independent
judgment and the taking of additional evidence,” as opposed
to being only “ministerial,” then the final judgment rule precludes reviewability; after all, “further proceedings” might
lead to denial of benefits altogether, mooting any appeal.82
The decision of the Appellate Court in claudio v. better
bedding inc.83 offers an example of the operation of the final
judgment rule. The court dismissed an appeal from a decision by the Compensation Review Board on compensability,
“because the board’s decision left unresolved the question of
whether the plaintiff was disabled, and if so, the appropriate
amount of damages.”84
The Connecticut Supreme Court grappled with the final
judgment rule in the Hummel case,85 and it freely acknowledged that the finality requirement “fairly may be described
as resting on dubious interpretive underpinnings.”86
see Hummel, supra n. 27, at 485.
id. at 492.
83
104 Conn. App. 1, 930 A.2d 943 (2007).
84
id. at 4.
85
supra n. 27 at 485.
86
id. at 502 n. 21. Justice Palmer, who wrote the opinion of the court, recognized that CONN. GEN. STAT. § 1-2z bolstered the argument for abrogation of the
final judgment rule, because CONN. GEN. STAT. § 31-301b, which provides for direct
appeal from the Compensation Review Board to the Appellate Court, contains no
81
82
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121
Although the Connecticut Defense Lawyers Association, the
Connecticut Trial Lawyers Association and the Workers'
Compensation Section of the Connecticut Bar Association all
argued in amicus curiae briefs that the final judgment rule
should be abrogated in workers’ compensation appeals, the
court left it intact, despite its jurisprudential fragility.87
The stec88 and dechio89 cases presented the Appellate
Court with a new twist on the final judgment rule. The question was not whether the appellant prematurely sought review
from a judgment that was not yet final, but rather whether the
appellant allowed the final judgment to pass by and belatedly
sought review of an action that was purely ministerial, namely a supplemental order directing the Second Injury Fund to
issue a payment of an order entered against an insolvent
employer. Ultimately no final judgment problem arose
because the “supplemental order” directed against the Second
Injury Fund amounted to only a “ministerial act,” that is, the
fund and only the fund was liable to pay, and, even if the commissioner had not computed the exact amount of the fund’s
liability, that task would amount only to the functional equivalent of performing simple mathematical calculation.90
VI. P RECLUSION : S TATUTORY A ND D OCTRINAL
Preclusion litigation in the workers’ compensation forum
such requirement. The court’s analysis then segued to this question: did enactment
of CONN. GEN. STAT. § 1-2z effectively overrule case law that interpreted CONN. GEN.
STAT. § 31-310b? To resolve this issue, which unaccountably became the
pivot point of the analysis, the court determined that it had to ascertain the “meaning” of CONN. GEN. STAT. § 1-2z itself! To that end, it determined that the meaning
of “text” in that statute was not plain nor ambiguous, so, as a result, the court was
left free to “consult extratextual sources to ascertain the meaning of §1-2z, including its legislative history” (emphasis added). id. at 498. The irony of this analytical approach cannot be lost on those who have followed the efforts of the
Connecticut Supreme Court to cope with the strictures that the Connecticut
Legislature sought to impose upon it by enacting CONN. GEN. STAT. § 1-2z. That
irony was not lost on Justices Borden and Katz, who together wrote a separate concurring opinion. see id. at 504.
87
The court did, however, invite legislative action. id. at 502. At this writing
the Connecticut Legislature is indeed entertaining legislation that would at least partially abrogate the final judgment rule.
88
Stec v. Raymark Industries, Inc., 114 Conn. App. 81, 968 A.2d 960 (2009).
89
Dechio v. Raymark Industries, Inc., 114 Conn. App. 58, 968 A.2d 450 (2009).
90
id. at 72-74.
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takes two forms: statutory and doctrinal. General Statutes
Section 31-294c(b) provides essentially that an employer who
has been duly placed on statutory notice of a claim, but who
fails timely to contest liability, is conclusively presumed to
have accepted compensability—and, not only that, may not
dispute any medical or indemnity claims that are being
advanced. Statutory preclusion amounts to the functional
equivalent of a civil default judgment.
Doctrinal preclusion is altogether different; litigation here
typically involves determination of the collateral estoppel
effect, in the state workers’ compensation forum, of a judgment in the federal longshore forum. Over the past year or so
the Connecticut Supreme Court has decided several preclusion cases that have roiled the workers’ compensation bar.
A. statutory preclusion
Last year, in Harpaz v. laidlaw transit, inc.,91 the
Connecticut Supreme Court held that, where the conclusive
presumption of compensability attaches, “the employer is
barred from contesting the employee’s right to receive compensation on any ground or the extent of the employee’s disability. Such a penalty is harsh, but it reflects a just and
rational result.”92 This means that the employer is barred
from offering any defenses93 to any claims, and, if any slow
learners failed to recognize that, the court drove the point
home in donahue v. veridiem, inc.94 In donahue the
employer had been allowed to challenge claimant’s proof
through cross-examination and “submission of a written
argument [a brief/trial memorandum].”95 The fact that the
91
286 Conn. 102, 942 A.2d 396 (2008).
id. at 130. Inasmuch as a Form 30c imposes no obligation on a claimant to
identify the benefits sought, the employer can face preclusion with no notice of the
extent of the claimant’s alleged disability.
93
The statutory presumption does not, however, bar defenses related to the commission’s subject matter jurisdiction. see Castro v. Viera, 207 Conn. 420, 429, 541
A.2d 1216 (1988) (employer not barred from contesting employer-employee relationship); Del Toro v. Stamford, 270 Conn. 532, 547, 853 A.2d 95 (2004) (employer not
barred from contesting whether injury for which compensation is sought is covered);
and Infante v. Mansfield Construction Co., 47 Conn. App. 530, 706 A.2d 984 (1998)
(employer not barred from contesting timely initiation of claim).
94
291 Conn. 537 (2009).
95
id. at 540.
92
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commissioner had permitted even that was held improper and
ultimately meant reversal and more. The court not only
remanded the case to the Compensation Review Board,
directing it to reverse the commissioner’s decision, it ordered
remand to a new commissioner, for “further proceedings.”96
What remains, now that these two cases have rendered
employers essentially prostrate before statutory preclusion?
First, neither case can be read (1) to infringe the adjudicative
authority of the commissioner; (2) to eliminate or lighten what
might be called the litigation “burdens” that the claimant bears,
e.g., the burdens of going forward and proving compensable
injury by “competent” evidence.97 The commissioner still
retains authority to “test” proof of compensability.98 In other
words, the commissioner “holds a claimant to [his or her]
proof without unsolicited assistance from the employer.”99
One might question whether the commissioner may solicit
assistance, given the commissioner’s authority, under General
Statutes Section 31-298, to “make inquiry, . . . , in a manner
that is best calculated to ascertain the substantial rights of the
parties and carry out the provisions and intent of this chapter.”
At a minimum one can expect these cases to trigger a proliferation of Form 30C’s—the designated notice of intent to
claim workers’ compensation benefits. Time will tell
whether any such proliferation is met by an equal and opposite surge of timely Form 43’s—the designated form by which
the employer disputes its liability.
B. doctrinal preclusion
It is not uncommon to see occupational diseases spawn
claims in two fora, the federal longshore forum and the state
id. at 555.
id. at 552. see also Harpaz, 281 Conn. at 131. The precluded employer
must decide whether to stipulate entirely “to the compensation being claimed.”
donahue, 291 Conn. at 537-36, 551. Does the employer remain precluded from
contesting liability for claims that have not yet arisen? This tantalizing sentence,
buried in discussion of CONN. GEN. STAT. § 1-2z, fosters the argument that preclusion is limited to pending claims: “the defendant gives an unduly expansive interpretation to Harpaz as barring an employer from contesting any subsequent claim for
additional compensation.” id. at 546 n. 8 (emphasis added).
98
id. at 553.
99
id. at 555 (emphasis added).
96
97
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workers’ compensation forum, nor is it uncommon to see a
claimant who prevails in the longshore forum to attempt to
preclude, under the doctrine of collateral estoppel, the
employer from relitigating causation in the state forum. The
seminal case is lafayette v. General dynamics corp.,100
where the court did allow a claimant who had prevailed in the
longshore forum collaterally to estop Electric Boat from relitigating compensability under the Act, because (1) claimant
bore the same procedural burden of proof in both fora, namely, proof of causal connection between injury and employment by preponderance of the evidence; and (2) the issue of
causation was actually litigated and necessarily determined in
the federal action.101
This left, however, a nagging and real dispute, addressed
in birnie v. electric boat corp.,102 over what might be called
the substantive causation standard, namely, whether the standard under the Longshore Act, that employment must be “a
contributing factor” in producing the injury, is less onerous
than the standard under the state Act, which requires that
employment had to have constituted a substantial factor in
producing injury.103
While showing some discomfiture, in principle, at the
application of the doctrine of collateral estoppel in the face of
such a significant potential discrepancy between standards of
causation, the court took a relatively easy way out: it held that
collateral estoppel did not apply in this case, because the
administrative law judge had not articulated any causation
standard, and the court was not going to make any assumptions about that standard.104 The birnie holding could be
read as a partial retreat from lafayette; its message is that a
necessary predicate for a collateral estoppel argument in the
state forum is satisfactory articulation of the causation standard that the administrative law judge applied in the longshore forum.
100
101
102
103
104
255 Conn. 762, 770 A.2d 1 (2001).
id. at 780-81.
birnie, supra n. 72, at 392.
id. at 402.
id. at 416-17. For further discussion of birnie, see Part IV. C., supra.
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VII. I NTERPLAY O F WORKERS ’ C OMPENSATION A ND C IVIL
L ITIGATION : E MPLOYMENT A ND P ERSONAL I NJURY L AW
Personal injury cases with roots in Chapter 568, namely,
pelletier v. sordoni/skanska construction co.,105
archambault v. soneco/northeastern, inc.106 and Jaiguay v.
vasquez107 have already been quite satisfactorily analyzed in
these pages.108 What arrives hot from the connecticut law
Journal press is the case of soracco v. williams scotsman,
inc.,109 which pertains to an employer’s subrogation rights.
As far as employment law is concerned, the Connecticut
Supreme Court decided an important case in curry v. allan
s. Goodman, inc.,110 which decision was the culmination of
a litigation marathon that began with injury at work in 1998.
A. General statutes section 31-293: employer’s Right of
subrogation in civil litigation
This appears to have been what happened in soracco: after
civil litigation, into which the employer had intervened, settled for a significant sum of money, the plaintiffs and the
intervening plaintiff agreed to allow the trial court to determine, after a hearing, whether allocation of fifty percent of
the settlement amount to the spousal loss of consortium claim
was reasonable. The court found the allocation reasonable,
and the intervenor appealed from an order to that effect. That
order was vacated, for this reason: General Statutes Section
31-293 demonstrates that the intervening plaintiff “lacked
standing to contest the allocation of the settlement proceeds,
and, thus, the trial court lacked jurisdiction to enter its
order.”111 Put differently, it does not allow an employer “to
interfere with a settlement reached between its employee and
105
286 Conn. 563, 945 A.2d 388 (2008).
287 Conn. 20, 946 A.2d 839 (2008).
107 287 Conn. 323, 948 A.2d 955 (2008).
108 James E. Wildes, tort developments in 2008, 83 CONN. B.J. 51, 53-56, 7778 (2009). The court’s choice-of-law analysis in Jaiguay, vis-à-vis workers’ compensation claims, is analyzed more fully in Part I.D., supra.
109 At this writing, the (unpaginated) text of the opinion is available only
through the judicial website. It will be officially released on June 9, 2009.
110 286 Conn. 390 (2008).
111 Soracco v. Williams Scotsman, Inc., 2009 WL 1458044 at *1 (Super. Ct.).
106
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the tortfeasor, nor does it provide courts with the authority to
dictate the appropriate terms of such a settlement.”112 The
intervenor lacked “standing,” because it had not suffered
“statutory aggrievement.”113 That is, the employer could not
have been aggrieved by a settlement to which it is not bound,
and which does not interfere with its rights in the absence of
its consent.114 Those rights consist of “the right to impose a
lien on any judgment or settlement, up to the amount of its
workers’ compensation liability, and the right to bring an
independent cause of action against the defendant,”115 to
recover its payments. There appears to be no evidence that
the intervenor had engaged in conduct that amounted to any
“voluntary relinquishment” of those rights. The court characterized the appeal as “nothing more than a challenge to the
voluntary and consensual division of the proceeds of a settlement,” where the intervenor seems to have ignored the fact
that its statutory “rights” remained intact in the face of a settlement to which it did not “assent.”116
The soracco decision pivoted on the fact that the intervenor withheld its “assent.” The ramifications of soracco
remain uncertain where the employer extends “assent” to a
settlement and moves to have the proceeds, arguably a “recovery” of “damages,” “apportioned,” consistent with the statutory formula. The employer may seek a hearing and a decision
on this issue.117 In mickel, the “recovery” of “damages” consisted of a plaintiffs’ verdict, and “[i]t is for the court, without
a jury, to apportion the damages between the two plaintiffs
[“main” plaintiff and intervening] on the basis either of a stipulation entered into them or of evidence heard by it.”118 It
would seem, therefore, that once the employer “assents,” it
may invoke the authority of the court to resolve any reimid. at *4 (emphasis added).
id.
114 id.
115 id. at *5.
116 id.
117 see Mickel v. New England Coal & Coke Company, 132 Conn. 671, 681, 47
A.2d 187 (1946).
118 id.
112
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127
bursement dispute; whether the employer will be “bound” by
an allocation, as opposed to a gross “recovery” to which it did
not “assent,” is an open question. The commissioners possess
similar authority where the employer claims a “credit,” also
known as a “moratorium,” against future workers’ compensation liability, to the extent of settlement proceeds actually realized by a plaintiff119—and, in practice, commissioners do not
consider themselves bound by any such allocation.120
B. employment litigation
John Curry hurt his back at work in 1998; thus, he began his
workers’ compensation litigation odyssey as a claimant. In
April of 2001 his employment was terminated. The employer
took no action at that time on a letter from Mr. Curry’s attorney to a manager, “advising him of the defendant’s obligation
to provide reasonable accommodation under the law.”121 The
employer’s apparent indifference to this letter precipitated a
parallel journey in the civil courts. John Curry sued in state
court, alleging various discriminatory, retaliatory, and other
wrongful acts on the part of his employer, and at various times
over the years the case found itself in federal court, removed to
state court, before the Appellate Court,122 once again in
Superior Court, and ultimately before the Connecticut
Supreme Court.123 The employer had, in fact, accommodated
restrictions with limited duty—but the accommodation was
only temporary. The court reversed entry of summary judgment against the plaintiff (all but implicitly directing entry of
judgment against the employer), holding as follows: if the disabled individual wants to return to work, that individual must
initiate a dialogue with the employer, with a view toward
reaching agreement over “reasonable accommodation” of
see Love v. J.P. Stevens & Co., 218 Conn. 46, 50, 587 A.2d 1042 (1991).
see, e.g., Schiano v. Bliss Exterminating Co., 57 Conn. App. 406, 750 A.2d
1098 (2000).
121 Curry v. Allan [or “Allen”; the opinion uses both spellings] S. Goodman,
Inc., 286 Conn. 390, 397, 944 A.2d 925 (2008).
122 Curry v. Allan S. Goodman, Inc., 95 Conn. App. 147, 895 A.2d 266 (2006).
123 The tortuous history of this litigation is recited from pages 397 to 401 of the
curry opinion.
119
120
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physical restrictions, with modifications that would enable the
individual to perform the essential functions of the position
“on a more permanent basis.”124 One could read curry to proscribe (a) any limited duty policy that is limited in time, e.g.,
may continue for six months, after which time any employee
who is incapable of full duty is discharged; and (b) any limited duty program that “eliminates the individualized assessment of each disabled employee for purposes of reasonable
accommodations.”125 It is an open question as to whether an
employee may initiate the “interactive process” as soon as he
or she develops any work capacity at all, even though maximum medical improvement has not been reached, and, in the
meantime, the extent of restrictions remains in a state of flux.
VIII. R ELATED S TATUTE : G ENERAL S TATUTES S ECTION 7-433 C
(“H EART A ND H YPERTENSION ACT ”)
Chapter 113 of the Connecticut General Statutes, including Section 7-433c, otherwise known as the Heart and
Hypertension Act, has enjoyed a long and occasionally
tumultuous history. Suffice it to say that, in its heyday, it
created municipal liability for the emergence of hypertension
or heart disease in police officers or firefighters, irrespective
of any work connection. Benefits under this statutory
scheme are administered under Chapter 568. In vincent v.
new Haven126 the Connecticut Supreme Court resolved an
issue that arose over the interplay of General Statutes Section
7-433c and General Statutes Section 31-284b which provides
generally for the continuation of group health insurance for
injured municipal workers. The question was whether the
surviving dependent of an employee was entitled to continued benefits under Section 31-284b upon that employee’s
death. First, the court exercised plenary review;127 in a
lengthy footnote it adumbrated the rigorous criteria by which
it would bow in deference to the interpretation of an
124
125
126
127
id. at 416-17, 419, 424.
id. at 426 n. 23.
285 Conn. 778, 941 A.2d 932 (2008).
id. at 784.
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129
“ambiguous” statute that an agency is charged with administering.128 Second, the court did not see fit to resort to legislative history; it found no “ambiguity” in Section 31-284b,
which refers “only to ‘employees’ and contains no reference
either to deceased employees or to their surviving dependents.”129 An appeal to the humanitarian purpose of the Act,
as a means of inducing the court to search for ambiguity and
thus find a means of avoiding a harsh result to widows, did
not succeed: “we are not free, . . . , to create ambiguity when
none exists.”130
The lesson of vincent is that the humanitarian purpose of
the Act does not translate into an appellate trump card. Yet,
where the majority found nothing ambiguous about “employee,” Justice Borden did in a short concurring opinion; he reasoned that if the Compensation Review Board read General
Statutes Section 31-306 plausibly to create liability to continue health insurance coverage to a surviving dependent,
“therefore, the statutory language is ambiguous.”131 Justice
Borden picked up on “this ambiguity,” and he equated the
statutory scheme’s remedial purpose with the “extratextual
source of the meaning of the language on which the plaintiff
relies,” but ultimately concluded that was not enough to overcome “the strong suggestion of the text” that Section 31-284b
does not require municipal employers to maintain health benefits to surviving dependents pursuant to Section 31-306.132
IX. C ONCLUSION
The Connecticut Supreme Court has demonstrated an
active interest in workers’ compensation issues; successful
petitions for certification testify to that. Once the court’s
interest is fully engaged, it is not afraid to sink its teeth into
a difficult issue; the Fredette opinion, among others, demonsee id. at 784 n. 8.
id. at 790.
130 id. at 792.
131 id. at 794. This statute addresses survivorship benefits under Chapter 568
and under Chapter 113.
132 id.
128
129
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strates that.133 On the other hand, its review is reflexively
plenary; it does not defer to decisions of the Compensation
Review Board. It almost, but not quite reflexively, mines legislative history to support its decisions; the dexterity with
which it has marginalized General Statutes Section 1-2z
deserves a separate chapter in the history of legal hermeneutics. With or without legislative history, it can cogently justify a harsh result. Furthermore, it has meted out harsh results
to both sides, so it is difficult to discern any “agenda” that it
is insidiously advancing. It displays, as well, courage of
another kind: the courage to reconsider and even reverse its
thinking. Nor is it afraid to invite the legislature to take corrective action.
Scholars are unlikely to go to the trouble of examining the
court’s workers’ compensation decisions to predict voting
patterns or discern emerging or receding philosophical trends
here. What one sees is this: a court that does not shirk its
judicial responsibility to consider a statutory scheme with
“obvious and significant gaps and inconsistencies in it” and
try “to make sense of it as much as possible,” in the felicitous
words of Justice Borden.134
see Part II.B., supra.
Fredette, 283 Conn. at 822. Many years before, Justice Borden wrote: “We
recognize that workers’ compensation law is practiced to a large extent by a specialized bar—both claimants’ and insurers’. Legislative changes are often made at the
behest of the principal economic constituencies which are the principal participants
in the system—labor unions and the business and insurance community. Moreover,
the commissioners both at the hearing and appellate levels, who adjudicate workers’
compensation disputes have, by virtue of their day-to-day experience, a large measure of legal expertise in the area.” Enquist v. General Datacom, 218 Conn. 19, 26-27
n. 7, 587 A.2d 1029 (1991). Justice Borden has spoken publically about his efforts
to recognize that bar’s “shared understanding” of the operation of the Act. Over the
years it has been Justice Borden who has consistently displayed a strong intellectual
commitment to understanding Chapter 568—as applied, as well as written.
133
134
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131
COMMERCIAL LITIGATION: THE YEAR IN REVIEW
B Y T HOMAS J. S ANSONE *
Between the spring of 2008 and the spring of 2009, there
was a plethora of interesting decisions at all levels of our
state court system. There is hesitation to say that any clear
trends are being established, but it is observed that, as a general proposition, jurists at every level, and particularly superior court judges, are seizing the opportunity to write elaborate and highly analytical decisions, especially on the subjects of foreclosure and breach of contract.
One of the more notable decisions at the Supreme
Court level is bernhard –thomas building systems, llc v.
dunican,1 which features an interesting intersection between
the law of prejudgment remedies and the cause of action for
vexatious litigation. In this case, the plaintiff applied for a
prejudgment remedy and, after losing the hearing on the
application, decided not to pursue the lawsuit.
The respondent then filed his own action against both the
applicant and the applicant’s attorney for vexatious litigation.
The court granted the defendant’s motion to strike the complaint, finding that one of the necessary elements of a vexatious litigation claim, namely the termination of a prior civil
action in the plaintiff ’s favor, was lacking. The court ruled
that an application for a PJR, absent anything more, does not
constitute a “civil action,” especially where, as here, the unsuccessful applicant thereafter declined to institute the lawsuit.
Thus, there could be no claim for vexatious litigation.
This case also serves as a reminder that the mere filing of
an application for a PJR does not satisfy the requirement for
instituting a lawsuit for purposes of filing an action before
the statute of limitations has run.
The statute of limitations is also considered in another
noteworthy case, Jsa Financial corp. v. Quality kitchen
corp. of delaware.2 There, the holder of a note brought a
* Of the New Haven Bar.
1 Bernhard-Thomas Building Systems, LLC v. Dunican, 286 Conn. 548 (2008).
2 JSA Financial Corp. v. Quality Kitchen Corp. of Delaware, 113 Conn. App.
52 (2009).
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lawsuit against the guarantor of the underlying obligation.
The note was a term instrument with a maturity date of July
18, 1990 and was, naturally, subject to the six-year statute of
limitations for written contracts.
The holder did not commence suit until July 2, 2002
which, at first blush, appears to be nearly six years after the
statute had run. Nevertheless, the reaffirmation of a debt can
revive the limitations period. In this case, the maker had made
a payment on November 19, 1996, about five months after the
statute had run. This had the practical effect of extending the
limitations period six years from that date—November 2002.
Thus, the action was deemed to have been timely filed.
Although the guarantor was not the party who had tendered the
payment that extended the statute, the guaranty expressly stated that the holder could modify the terms of repayment with
the maker, without the consent or knowledge of the guarantor.
The case of kendall v. amster3 raises hopes for many
creditors who have heretofore been frustrated by companies
that run up debts, go out of business, and then reopen in a
slightly reconstituted form under a different name. In
kendall, the appellate court upheld the trial court’s granting
of the plaintiff ’s PJR application, which sought to attach the
property of an entity other than the party which was actually
indebted to the applicant.
The court found that the plaintiff had established the successor liability of the defendant for the debts of its predecessor. Both were engaged in the highly specialized business of
restoring vintage automobiles; and both utilized the same
production processes in virtually identical work environments; and both used the same employees as technicians and
supervisors. Thus, the successor was liable under the theory
of continuity of enterprise.
In the civil procedure arena, argent mortgage co., llc v.
Huertas4 is of interest. The Supreme Court upheld the trial
court’s denial of a motion to open a judgment of strict foreclosure filed by the property owner who claimed that the
3
4
Kendall v. Amster, 108 Conn. App. 319 (2008).
Argent Mortgage Co., LLC v. Huertas, 288 Conn. 568 (2008).
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133
plaintiff had not properly served him by leaving the suit
papers at his residence during his period of incarceration.
The Supreme Court agreed with the trial court that service
was sufficient, notwithstanding the defendant’s status as a
“guest of the State” at the time since he was planning to
return to his residence following his release, and his family
continued to reside there during this absence.
The Supreme Court went a step further, however, by finding that the trial court should have denied the motion on
mootness grounds, given that it was filed five months after
title had vested in the plaintiff which was beyond the fourmonth period prescribed by statute.
Meanwhile, in the superior court, Judge Barbara Bellis
held that a limited liability company may file a pro se appearance despite the rule that a noncorporeal entity may not
appear pro se, and she found an exception where there is a
sole owner of the entity in snet information services v.
photopros studio, llc.5 In yates v. united car Rentals,6
Superior Court Judge Richard Arnold held that a foreign corporation is subject to personal jurisdiction in Connecticut,
even in lawsuits unrelated to the business which it is registered to conduct in Connecticut.
On a related note, in north star capital acquisition, llc
v. murillo,7 Judge Trial Referee John Maiocco held that a foreign limited liability company that is not authorized to transact business in Connecticut, but which nonetheless seeks to
avail itself of our courts, is not entitled to the statutory stay
that enables foreign corporations to suspend litigation that
they have brought pending their procurement of a certificate
of authority from the secretary of the state. Nevertheless,
Judge Maiocco provided some relief to the foreign LLC
plaintiff, finding that the court itself possesses inherent
power to grant such stays. Moreover, he found that the nature
of the lawsuit, through which the plaintiff sought to collect an
5 SNET Information Services v. Photopros Studio, LLC, 45 Conn. Law Rptr.
209 (Super. Ct. March 19, 2008).
6 Yates v. United Car Rentals, 54 Conn. Law Rptr. 518 (Super. Ct. May 8, 2008).
7 North Star Capital Acquisition, LLC v. Murillo, 46 Conn. Law Rptr. 595
(Super. Ct. November 14, 2008).
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unpaid debt, did not require the plaintiff to procure a certificate of authority to transact business in Connecticut because
the mere maintenance of a debtor/creditor relationship with
the defendant did not amount to the transaction of business
within the meaning of the law.8
The Appellate Court tackled a related issue in trevek
enterprises, inc. v. victory contracting corporation.9
There, the original plaintiff was a foreign corporation that
lacked a certificate of authority to transact business in the
state. The defendant learned of this and moved that the
action be stayed until such time as the plaintiff procured a
certificate of authority. Rather than doing that, however, the
plaintiff instead assigned its cause of action to a newly
formed affiliate which was registered to do business in
Connecticut. The lower court rewarded such ingenuity, reasoning that the stay was no longer necessary, now that the
affiliate had been substituted as the new plaintiff.
A nice try, but the Appellate Court took a far different
view, finding that the assignment of the cause of action by an
entity that was not entitled to bring an action in Connecticut
to an entity that was is inconsistent with the legislative purposes of General Statutes Section 33-921, and therefore
remanded the matter to the superior court with instructions to
continue the stay until the original plaintiff obtained the
required certificate of authority.
Returning to the superior court, there is an interesting
holding by Judge Trial Referee William Hadden in d’amato
investments, llc v. Raus.10 This is a statute of frauds case in
which the court found that an action could be maintained,
notwithstanding the absence of an actual signature on the
contract at issue. Someone other than the defendant had
printed the defendant’s name on the signature line of the contract. Nevertheless, there were several other collateral documents that had been signed by the defendant and, taken in
8
CONN. GEN. STAT. §34-235(b)(8).
Trevek Enterprises, Inc. v. Victory Contracting Corporation, 107 Conn.
App. 574 (2008).
10
D’Amato Investments, LLC v. Raus, 46 Conn. Law Rptr. 93 (Super. Ct.
August 4, 2008).
9
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their totality, there was sufficient evidence to exist to show
that the defendant intended to be bound by the terms of the
“unsigned” contract.
In patriot marine, llc v. indian town association, inc.,11
Judge Trial Referee Seymour Hendel confronted the question
of whether a party to a marina-dredging contract which has
overperformed its obligations is entitled to extra-contractual
damages from the other party. There, the contractor wound up
doing a lot of unnecessary work because the government
inspector who was monitoring the project directed such work
to be done. As it eventually came to light, the work was entirely superfluous, and the marina owner balked when it was presented with the dredging contractor’s bill. The contractor then
sued for unjust enrichment, and the marina owner defended the
action, claiming that the quasi-contractual remedy of unjust
enrichment was inapplicable because the parties had an actual
contract which prescribed their relative rights and duties.
Judge Hendel disagreed with the marina owner, finding
that, because the work which the contractor had done was
beyond the scope of the contract, and was undertaken
because of the error of a third party (the government inspector), the issue of compensation for such work was likewise
beyond the contract. The court reasoned that this is precisely the type of situation that the quasi-contractual remedy of
unjust enrichment is intended to address. Therefore, the
court ordered the marina owner to pay the contractor the reasonable value of the extra services provided.
There were plenty of decisions in the foreclosure area,
including several at the Appellate Court level. One such case
is Jp morgan chase bank v. Rodrigues12 which is one of several recent opinions holding that the defenses to foreclosure
are limited to those related to the making, validity or enforcement of the mortgage itself. If there are any trends in this
area being established, this line of cases suggests that the
courts are unwilling to revert back to the free-for-all that we
11
Patriot Marine, LLC v. Indian Town Association, Inc., 46 Conn. Law Rptr.
278 (Super. Ct. September 9, 2008).
12
JP Morgan Chase Bank v. Rodrigues, 109 Conn. App. 125 (2008).
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saw in the late ‘80s and early ‘90s during the last recession
when creative borrowers interposed a wide variety of defenses, many of which were not only tolerated, but actually credited by the court.
In sunset mortgage v. agolio,13 the appellate court rejected the borrower’s defense that the mortgagee’s acceleration of
the debt was premature because it was done on the fourth day
of the month, which was well before the expiration of the socalled grace period which ran 10 days. The court held that
the purpose of the 10-day period was to mark the point in
time when the lender would be entitled to impose a late fee,
not a deadline for payment. Besides, as the court noted, the
borrower had already defaulted by failing to make the prior
month’s payment as well.
Meanwhile, back in the superior court, Judge Thomas
Corradino, in master Financial, inc. v. christensen associates, inc.,14 confronted an issue that is becoming increasingly commonplace as notes and mortgages are more widely
bought and sold on the secondary market. There, the court
held that the actual owner of the commercial paper may be
substituted for the servicing agent in a foreclosure action,
when the owner actually “takes back” the responsibilities for
administration of the mortgage. In so holding, the court also
affirmed the right of nominal parties in interest, such as servicing agents, to bring actions in their own names.
In a similar vein, Judge Salvatore Agati’s decision in us
bank v. Fields15 held that a mortgage foreclosure action can
be brought by the party who holds a note secured by a mortgage, even if the mortgage itself has not yet been assigned to
that party. In so holding, the court reasoned that the mortgage “follows” the note, a principle codified in General
Statutes Section 49-17.
A thorny title dispute was resolved by Superior Court Judge
Julie Aurigemma in bank of america, n.a. v. maize.16 This
13
Sunset Mortgage v. Agolio, 109 Conn. App. 198 (2008).
Master Financial, Inc. v. Christensen Associates, Inc., 45 Conn. Law Rptr.
224 (Super. Ct. March 20, 2008).
15
US Bank v. Fields, 45 Conn. Law Rptr. 620 (Super. Ct. May 22, 2008).
14
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presented an unusual situation where the defendant/borrower
had taken out a first mortgage loan with the Bank of America,
but had simultaneously availed himself of a City of Hartford
program giving qualified purchasers “gap financing” which,
under this program, was designed to be secured by a second
mortgage on the property. The problem arose because there
was a mix-up in the recording sequence at the City Clerk’s
office in Hartford, and the city’s gap financing mortgage was
recorded first, before Bank of America’s. Judge Aurigemma,
utilizing the equitable power of a foreclosure court, refused to
apply the otherwise inflexible first-in-time/first-in-right rule
for establishing the priority of recorded instruments, and
instead finding that it was all of the parties’ intention that the
city’s mortgage would be subordinate to the primary lender’s.
It is noteworthy to mention a trio of non-mortgage foreclosure cases, all at the superior court level, that illustrate
some of the pitfalls in this area of practice. premier building
& development, inc. v. Falotico,17 a mechanic’s lien foreclosure action, illustrates the dangers of not properly identifying
the party with standing to bring the action. In this case, a
mechanic’s lien had been properly filed by the entity that had
provided the services to the property owner. Yet, when the
foreclosure action was filed, it was mistakenly brought in the
name of an affiliated entity that had a very similar name.
By the time this was discovered, more than a year had
passed since the lien had been recorded. Thus, Judge Trial
Referee Robert Satter refused to permit substitution of the correct party because, by statute, the lienor has only one year from
the date of recordation to commence the foreclosure action.
Judge Satter also came up with a very interesting result in
a judgment lien foreclosure action, unifund ccR partners v.
schaeppi.18 In that case, the court disallowed foreclosure of
the lien because the property in question had no equity to
16
Bank of America, N.A. v. Maize, Super. Ct., J.D. of Hartford, No. CV-085017362S, March 18, 2009 (Aurigemma, J.).
17
Premier Building & Development, Inc. v. Falotico, 44 Conn. Law Rptr. 864
(Super Ct. February 4, 2008).
18
Unifund CCR Partners v. Schaeppi, 45 Conn. Law Rptr. 221 (Super Ct.
March 20, 2008).
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support any recovery to the lienor, after taking into account
that the joint owners, a married couple, could claim homestead exemptions of $150,000. Coupled with the mortgage of
$37,600 that encumbered the property, the total was up to
$187,600, which was more than the property was worth.
Judge Satter reasoned that it would be futile to foreclose the
judgment lien because the lienor would be doing nothing
more than taking title to property whose encumbrances were
greater than the property’s value. In some respects, this
smacks of legal paternalism. After all, it should be the foreclosing lienor’s decision whether it wishes to take title to
property with no equity. Eventually such property could conceivably appreciate in value, and then, the lienor would have
something of worth to show for its efforts.
The last of the trio is bridgeport wpca v. king19 in which
Judge Joseph Doherty held that a sewer lien foreclosure
brought against a property owner who was already in bankruptcy is void ab initio, because it violates the automatic stay
provisions of the Bankruptcy Code,20 notwithstanding the
plaintiff ’s subsequent procurement of relief from the stay. In
this case, the plaintiff should have immediately withdrawn
the lawsuit, once it learned of the bankruptcy filing, moved
for relief from stay, and then, refiled the action after the
Bankruptcy Court granted permission to do so.
An interesting Article 3 case, liberty bank v. de-marty,21
was decided by Superior Court Judge James Abrams. This
arose out of the now all too familiar scam where the defendant
had been told that she had won a sweepstakes (even though
she had never played the sweepstakes) and thereafter began
receiving checks for her “winnings” which she deposited into
her bank account with the plaintiff. Then, she was instructed
by the sweepstakes “promoter” to wire a portion of the money
to a bank in Spain, which would thereafter send her the
remainder of her prize. Well, you now how this ends. She
sent good funds to Spain, and never got anything back.
19
Bridgeport WPCA v. King, 46 Conn. Law Rptr. 626 (Super. Ct. November
12, 2008).
20
11 U.S.C. §362.
21
Liberty Bank v. De-Marty, 45 Conn. Law Rptr. 285 (Super. Ct. April 2, 2008).
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The checks that she had previously deposited with the
plaintiff were returned “NSF,” so the bank set off its debts
against the good funds in her account, and sued for the balance.
This case confronts the issue of whether a bank can validly
maintain a recoupment action against its depositor when the
bank itself was responsible for allowing her to draw on funds
for checks that had not yet cleared. In finding for the bank, the
court held that banks are permitted to do so to prevent the hindrance of commercial transactions, citing the Appellate Court’s
decision in laurel bank and trust co. v. the city national
bank of connecticut22 in support of its position.
aurora loan services v. nuzzo,23 a decision by Superior
Court Judge Bruce Levin, illustrates the procedural morass
that can ensue if there is improper tracking of assignments of
loan documents. There, the plaintiff instituted a foreclosure
action four months before it had received an assignment of
the mortgage and loan documents that were the subject of the
action. Not only was the plaintiff unsuccessful in moving for
summary judgment, but also the court found that the plaintiff
lacked standing to maintain the action.
Things went from bad to worse when the plaintiff filed a
motion to substitute the holder of the loan documents because,
by that time, that holder had since assigned the debt to the
plaintiff. Accordingly, that motion was denied. Judge Levin
eventually clued the plaintiff in, indicating that the proper procedure would have been for the original holder of the instrument to be substituted as plaintiff, then assign the instrument
to the original plaintiff, which could then move to be substituted as the new plaintiff. Of course, it was too late to do all
that because the note had already been assigned to the original plaintiff by the time all of this was discovered. On balance, the smarter thing to do would simply have been to withdraw the case, and refile it in the name of the party that actually held the instruments at the time the case was refiled.
And, finally, in the “do not try this at home” category, is
22
Laurel Bank and Trust Co. v. The City National Bank of Connecticut, 33
Conn. Supp. 641, 647 (App. Div. 1976).
23
Aurora Loan Services v. Nuzzo, 46 Conn. Law Rptr. 682 (Super. Ct.
November 13, 2008).
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the Supreme Court’s decision in chapman lumber, inc. v.
tager.24 In that case, the high court upheld a jury verdict
finding that the defendant, a practicing attorney, induced the
plaintiff to accept a note and mortgage from the attorney’s
client to satisfy a judgment that the plaintiff had previously
obtained against that client. The problem was that the defendant/attorney knew that the property offered as security was
no longer owned by the client, but he convinced the plaintiff
to take it anyway, deliberately concealing that fact.
The harm to the plaintiff was that, as a consequence of the
lawyer’s intentional misrepresentations, the plaintiff did not
pursue other opportunities to collect the judgment by seizing
other assets that the judgment debtor did own, but which had
been dissipated by the time that the attorney’s misrepresentations were detected.
All told, it was an interesting and active year for judges
sitting on commercial cases, and, with the downturn in the
economy, we can anticipate more of the same in the years to
come.
24
Chapman Lumber, Inc. v. Tager, 288 Conn. 69 (2008).
2009] 2008 developments in connecticut estate and pRobate law
141
2008 DEVELOPMENTS IN CONNECTICUT ESTATE AND
PROBATE LAW
B Y J EFFREY A. C OOPER * AND J OHN R. I VIMEY **
In this Article, we provide a summary of recent developments impacting Connecticut estate planning and probate
practice. In Part I, we provide a survey of selected 2008 case
law relevant to the field. In Part II, we discuss several significant estate planning and administration complications
produced by Department of Revenue Services policy and
recent changes in federal law.1
I. C ASE L AW
During 2008, Connecticut’s courts issued numerous decisions impacting probate practice. In this section, we summarize a number of these decisions, focusing on those most likely to have widespread relevance.
A. probate appeals
1. Equitable Powers
In sandford v. metcalfe,2 the Appellate Court revisited a
case featured in last year’s update.3 At issue was a will executed by a Connecticut domiciliary just five days before her
death.4 The attorney who drafted the will and oversaw its
execution was not admitted to practice law in Connecticut.5
In addition, the draftsman was named as a beneficiary under
the will, entitled to one-half of the decedent’s residuary
* Associate Professor of Law, Quinnipiac University School of Law.
** Of the Hartford Bar. The authors are grateful to Attorney Frank S. Berall for
his thoughtful comments regarding this Article.
1 Unlike in years past, this year’s summary of recent developments does not
include a separate Part devoted to a discussion of relevant legislation. This change
is intentional, as 2008 did not bring a significant volume of Connecticut legislation
directly relevant to the field. In lieu of a separate Part devoted to legislation, we note
legislative developments in Part I of this Article as relevant to the cases discussed
therein. In addition, Part II of this Article includes a discussion of legislation which
the legislature considered in 2008 but did not enact into law.
2 110 Conn. App. 162 (2008).
3 see John R. Ivimey and Jeffrey A. Cooper, 2007 developments in
connecticut estate and probate law, 82 CONN. B. J. 119, 141-42, 144 (2008) (discussing the Superior Court’s treatment of the matter).
4 sandford, supra note 2, at 164.
5 id. The drafting attorney was admitted to practice law in New York. id.
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estate.6 After unsuccessfully challenging the will in probate
court on grounds of undue influence, the decedent’s heirs
appealed to the Superior Court, invoking equitable principles
of “public policy” in an effort to void the attorney-draftsman’s bequest.7
As had the Superior Court, the Appellate Court refused to
grant the requested relief. The court held that when hearing
a matter arising out of a probate court appeal, the court sits
as a probate court and is limited to a probate court’s powers
and jurisdiction.8 Given this procedural posture, the court
concluded that it lacked the broad equitable powers necessary
to grant the requested relief.9
2. Timeliness of Appeal
In corneroli v. d’amico,10 the Superior Court granted a
motion to dismiss an untimely probate appeal. The governing
statute, General Statutes Section 45a-186, generally imposes a
thirty-day deadline for “commencement” of probate appeals.11
The plaintiff in this case took more than double that time to
file his appeal. Since the right to appeal is a statutory one
requiring strict compliance with statutory formalities,12 the
court granted a motion to dismiss the untimely appeal.
In Gates v. Gates,13 the Superior Court similarly dismissed an untimely probate appeal. However, the facts of
this case reveal a significant trap for the unwary practitioner.
Specifically, the plaintiff in Gates acted within the thirty-day
deadline for filing a probate appeal by serving a complaint
id. at 164-65.
id. at 167.
8 id. at 167-68, quoting State v. Gordon, 45 Conn. App. 490, 494-95 (1997).
9 id. at 170. This is not to suggest that the court necessarily would have granted the requested relief had it had the power to do so. Indeed, the court suggested
that the plaintiff ’s public policy concerns were “protected adequately” by existing
laws and procedures which govern and penalize the unauthorized or unethical practice of law. id. at 170 n. 8.
10 2008 WL 4026332, 46 Conn. L. Rptr. 61 (Conn. Super. Aug. 6, 2008).
11 CONN. GEN. STAT. § 45a-186(a) (2007) provides in relevant part as follows:
“Any person aggrieved by any order, denial or decree of a court of probate in any
matter, unless otherwise specially provided by law, may, . . . not later than thirty
days after mailing of an order, denial or decree for any other matter in a court of probate, appeal therefrom to the superior court. Such an appeal shall be commenced by
filing a complaint in the superior court . . . .”
12 corneroli, supra note 10, at *1, citing State v. Goggin, 208 Conn. 606, 615
(1988).
13 2008 WL 4050369, 46 Conn. L. Rptr. 102 (Conn. Super. Aug. 8, 2008).
6
7
2009] 2008 developments in connecticut estate and pRobate law
143
upon the probate court and all interested parties.14 Although
all parties were served within the thirty-day statutory period,
the complaint was not filed in the Superior Court until some
two weeks later.15
While this procedure complied with the requirements for
initiating a general civil matter in the Superior Court, it did
not comply with the specific procedures applicable to probate
appeals pursuant to General Statutes Section 45a-186, as
modified in 2007 by Public Act 07-116. Specifically,
General Statutes Section 45a-186(a) now provides that a probate appeal is “commenced” by filing a complaint in the
Superior Court rather than through service of process. This
procedural approach is the exact opposite of that applicable
to general civil actions, which are initiated by service of
process and only thereafter filed with the court.
The court in Gates undertook a detailed analysis of the provisions of General Statutes Section 45a-186 and concluded that
they “clearly and unambiguously” require than an appeal be filed
with the Superior Court before expiration of the thirty-day deadline. Concluding that any contrary holding would require a “tortured” reading of the statutory provisions,16 the court granted the
defendant’s motion to dismiss this untimely appeal.17
3. Concurrent Jurisdiction
In Zipoli v. Gidez,18 the Superior Court considered the
scope of its statutory jurisdiction to hear probate-related matters. At issue was the interpretation of certain provisions of
a decedent’s will and trust. Although the decedent’s estate
was being settled under supervision of the probate court, the
plaintiff brought his declaratory action in Superior Court
rather than in probate court.
In addressing a motion to strike the plaintiff ’s action, the
Superior Court observed that it had concurrent jurisdiction
with the probate court to address the matters raised in the
declaratory judgment action.19 However, the court took its
14
15
16
17
18
19
id. at *1.
id.
id. at *3.
id. at *4.
2008 WL 544635, 44 Conn. L. Rptr. 807 (Conn. Super. Feb. 4, 2008).
id. at *1.
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analysis a step further, concluding that notwithstanding its
jurisdictional authority, “the spirit of comity and concurrence”
dictated that it defer to the ongoing probate court proceedings
and allow the probate judge to consider the construction issues
as part of the estate settlement process.20 In light of this decision, the Superior Court decided to delay its ruling on the
motion to strike for three (3) months in order to allow the probate court an opportunity to consider the matter.21
In meyer v. peck,22 the Superior Court again considered
the issue of concurrent jurisdiction. At issue was a complaint
requesting, inter alia, that the court invalidate a decedent’s
will and trust as being the product of undue influence. The
defendants moved to dismiss the Superior Court action, contending that the probate court has primary jurisdiction to hear
such a dispute and thus the Superior Court lacks subject matter jurisdiction.23
The Superior Court denied the motion to dismiss.24 In
analyzing the issue, the Superior Court observed that as a
court of general jurisdiction it has subject matter jurisdiction
over all matters not specifically excepted by statute.25 In
contrast, the probate court is a court of limited jurisdiction,
with exclusive jurisdiction to hear a given matter only when
the legislature has clearly vested such authority in the probate
court.26 Turning to the matter at bar, the court concluded that
the probate court neither had exclusive jurisdiction over the
plaintiff ’s claims nor the broad equitable powers necessary to
grant the plaintiff ’s requested relief.27 For these reasons, the
court decided to exercise its concurrent jurisdiction and
denied the motion to dismiss.28
id.
id. at *2.
22 2008 WL 2930293 (Conn. Super. July 8, 2008).
23 id. at *1.
24 id. at *6.
25 id. at *2 (citing in re Joshua S., 260 Conn. 182, 214-15 (2002)).
26 id. at *3 (citing Heiser v. Morgan Guaranty Trust Co., 150 Conn. 563. 565
(1963)).
27 id. at *6, citing Fogg v. Gardella, 34 Conn. L. Rptr. 194, 197 (Conn. Super.
Feb. 20, 2003).
28 id.
20
21
2009] 2008 developments in connecticut estate and pRobate law
145
B. marriage and Families
1. Same-Sex Marriage
In kerrigan v. commissioner of public Health,29 a divided
Connecticut Supreme Court recognized a constitutional right
to marry a partner of the same gender. While the ruling is
extremely important when considered from a broad historical
and social perspective, the case may be of far less significance
when viewed through the extremely narrow lens of
Connecticut estate and tax planning. Specifically, Connecticut
law previously accorded the legal benefits of marriage to
same-sex parties who entered into state-sanctioned civil
unions,30 while the Federal Defense of Marriage Act31 remains
a significant bar to truly equal treatment of same-sex couples.
2. Surrogacy Agreements
In a series of cases, Connecticut Superior Courts wrestled
with the question of who should properly be listed as the
“parents” on a birth certificate of a child conceived pursuant
to a surrogacy agreement. The resulting inconsistent decisions evidence an area of the law in rapid flux.
For example, in oleski v. Hynes,32 the Superior Court
addressed the situation where two males entered into a valid
gestational agreement with a surrogate mother. The surrogate mother became pregnant with twins that were the biological product of one of the men’s sperm and an unnamed
donor’s eggs.33 Both men petitioned the Superior Court to
29 289 Conn. 135 (2008). For a detailed analysis of the case, see the materials
prepared by Attorney Frank S. Berall for the “After kerrigan: The Expansion of
Same-sex Legal Rights” Conn. Bar Assoc. seminar (March 3, 2009) (available at
http://www1.ctbar.org/CLEDetail2.aspx?cd=3841).
30 CONN. GEN. STAT. § 46b-38nn (2007) (granting parties to a civil union “all of
the same benefits, protections and responsibilities under law . . . as are granted to
spouses in a marriage.”).
31 Defense of Marriage Act, Pub. L. No. 104-199, 110 Stat. 2419 (1996) (codified at 1 U.S.C. § 7 and 28 U.S.C. § 1738C). The Act provides that notwithstanding
any state law to the contrary, a same-sex marriage will not be considered a “marriage” for purposes of federal law. The Act also allows states to implement similar
laws restricting “marriage” to heterosexual couples, and nearly every state has done
so. see generally Kathy T. Graham, same-sex couples: their Rights as parents,
and their children’s Rights as children, 48 SANTA CLARA L. REV. 999, 1005-09
(2008) (summarizing state legislation regarding same-sex couples).
32 2008 WL 2930518, 45 Conn. L. Rptr. 855 (Conn. Super. July 10, 2008).
33 id. at *2.
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order that they, and not the surrogate mother, be listed as parents on the resulting children’s birth certificates.
In response to these facts, the Superior Court ruled that
the children’s biological father could be listed as parent of the
minor child born pursuant to this arrangement, but refused to
order that the father’s same-sex partner be listed as the children’s other parent.34 Rather, notwithstanding the valid surrogacy agreement to which he was a party, the second intended parent would be required to formally adopt the children
pursuant to General Statutes Section 45a-724.35
In Griffiths v. taylor,36 the Superior Court took an opposite approach to similar facts, ordering that a minor child’s
birth certificate reflect the intended effect of a valid surrogacy agreement. As a result, the child’s final birth certificate
listed two men as the child’s parents and did not include the
name of the birth mother the men had contracted with to
serve as a surrogate mother.37
At first blush, one might think that the conflicting holdings of oleski and Griffiths had been resolved by the October
1, 2008 effective date of Public Act 08-184,38 which modified the provisions of General Statutes 7-48a to include a specific reference to gestational agreements.39 Such optimism
would be misplaced. Indeed, the courts in both cases contended that their rulings were consistent with Public Act 08184, with the court in Griffiths arguing that the Act reflected
legislative intent to validate gestational agreements,40 while
id. at *12.
id. at *11.
36 2008 WL 2745130, 45 Conn. L. Rptr. 725 (Conn. Super. June 13, 2008).
37 id. at *7. Technically, pursuant to the terms of General Statutes § 7-48a, the
court ordered the production of two birth certificates. First, the attending health care
provider or hospital in which the child was born would file a birth certificate listing
the surrogate mother as the child’s natural mother. Immediately thereafter, the
Department of Public Health would issue a replacement birth certificate naming the
two male parties to the surrogacy agreement as the child’s “parents.” id.
38 P.A. 08-184 (Reg. Sess.), amending CONN. GEN. STAT. § 7-48a effective
October 1, 2008.
39 CONN. GEN. STAT. § 7-48a now provides in relevant part as follows: “On and
after January 1, 2002, each birth certificate shall be filed with the name of the birth
mother recorded. If the birth is subject to a gestational agreement, the Department
of Public Health shall create a replacement certificate in accordance with an order
from a court of competent jurisdiction . . . .”.
40 Griffiths, supra note 36, at *3.
34
35
2009] 2008 developments in connecticut estate and pRobate law
147
the court in oleski marginalized the Act as restating existing
law and not “authorizing new substantive rights.”41
C. lawyers and Judges
1. Unauthorized Practice of Law
In ellis v. Hartford Hospital,42 the Superior Court disregarded a contrary earlier decision43 and held that a co-executor who was not an attorney could not file a pro se appearance to represent the estate in a civil action. In reaching this
conclusion, the court cited General Statutes Section 51-88,
which generally restricts the practice of law to licensed attorneys but which allows a nonlawyer to appear pro se when
doing so in an individual capacity and “in his own cause.”44
The court concluded that a co-executor’s fiduciary duties
took him beyond the scope of this narrow exception insofar as
such duties required the co-executor to act not “for his self-interest but only for the interests of the heirs, distributes [sic] and
creditors of the estate.”45 Since the co-executor was obligated to
represent the interests of these various parties when litigating on
behalf of the estate, he could not do so in a pro se capacity.
In its opinion, the court cited favorable precedents from
both the United States Supreme Court46 and the Second
Circuit Court of Appeals,47 while conceding that a recent
Connecticut Appellate Court decision had found conflicting
Connecticut law on the issue.48
2. Judicial Immunity
In king v. Rell,49 the United States District Court considoleski, supra note 32, at *4 n. 10.
2008 WL 1948033, 45 Conn. L. Rptr. 365 (Conn. Super. Apr. 21, 2008).
43 id. at *1, noting that another Superior Court judge had previously denied the
motion this court was now granting.
44 CONN. GEN. STAT. § 51-88 (2007).
45 ellis, supra note 42, at *2.
46 id. at *1 (citing Rowland v. California Men’s Colony, 506 U.S. 194, 201-02
(1993)) (discussing that entities such as partnerships and corporations must be represented by licensed counsel).
47 id. at *4 (citing Pridgen v. Anderson, 113 F.3d 391, 393 (2d Cir. 1997)) (“we
now hold that an administratrix or executrix of an estate may not proceed pro se
when the estate has beneficiaries or creditors other than the litigant.”).
48 id. (citing Gibbs v. Spinner, 103 Conn. App. 502, 504 n. 2 (2007))
(Discussing conflicting authority and concluding that “[i]t is not clear whether the
fiduciary of an estate properly may file a pro se appearance.”).
49 2008 WL 793207 (D. Conn. 2008).
41
42
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ered numerous claims brought on behalf of the plaintiff, who
had been declared incapable of managing his affairs and
placed under a conservatorship.50 The plaintiff alleged that
the defendants in the action, which included the Governor, a
probate judge, the plaintiff ’s court-appointed attorney and his
conservator, committed a series of violations, ranging from
breach of fiduciary duties to assault and deprivation of constitutional rights.51 In a prior decision, the District Court held
that the probate judge’s actions were shielded by absolute
judicial immunity.52 The attorney and conservator now
moved to dismiss the causes of action against them, claiming
that the lawsuit against them similarly was barred by the doctrine of judicial immunity. The District Court granted the
motions to dismiss, concluding that both the plaintiff ’s courtappointed attorney and his conservator enjoyed absolute
quasi-judicial immunity for their actions, since they had been
appointed by, and served at the behest of, the probate judge.53
Although this opinion warrants far more detailed analysis
than is possible in a survey article such as this, the court’s analysis seems open to considerable criticism. Specifically, the
District Court seemed to underestimate the discretion inherent
in a conservator’s role, as indicated by the court’s assertion that
a conservator acts simply “as an agent of the Probate Court, at
the direction and under the supervision” of the presiding
judge.54 Similarly, the court dramatically oversimplified a very
complex statutory and ethical framework55 by concluding that
the role of an attorney appointed to represent an alleged incapable person is to “act as an arm of the court” and “perform the
judicial task of independently evaluating the evidence” rather
than representing a client’s expressed wishes.56
The District Court’s decision to dismiss the multitude of
50 The original plaintiff died during the pendency of this action, at which time
his administratrix became the named plaintiff. id. at *3.
51 id. at *2.
52 id. at *3.
53 id. at *3-*4.
54 id. at *4.
55 see generally Keith Bradoc Gallant and Lisa Nachmias Davis, the attorney
For the Respondent in connecticut conservatorship or commitment proceedings,
12 QUINNIPIAC PROB. L.J. 488 (1998) (discussing the numerous ethical considerations which shape the role of attorney for an alleged incapable person).
56 king, supra note 49, at *9.
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claims made against these various defendants might well
have achieved the proper result in this case. Nevertheless, the
resulting opinion perhaps typifies what Justice Thomas had
in mind when he warned that “just as ‘bad facts make bad
law,’ so too odd facts make odd law.”57 It seems incumbent
upon future courts to revisit the question of whether conservators and attorneys truly enjoy such blanket immunity with
respect to their handling of conservatorship matters.
II. C HALLENGES P RESENTED
BY THE
C ONNECTICUT E STATE TAX
The current version of the Connecticut Estate Tax took
effect in 2005.58 Since then, practitioners, members of the
public and the Estate and Probate Section of the Connecticut
Bar Association all have expressed numerous concerns about
the drafting of the applicable statutes and their interpretation
by the Department of Revenue Services (“DRS”). The legislature has considered dozens of changes and technical corrections to address these concerns.59 None of these proposed
changes has been enacted into law.60
In 2008, residents of Connecticut experienced the full
effect of the failure of the legislature to enact these necessary
changes and the failure of the DRS to revise its interpretation
of the law. Connecticut practitioners and their clients have
become increasingly frustrated with a state estate and gift tax
regime under which the same piece of property can be taxed
twice, where a ‘cliff ’ in the tax table can result in incremental property being taxed at a rate far in excess of 100%, and
where estates frequently must endure duplicative federal and
state tax audits.
Starting January 1, 2009, additional administrative problems became commonplace. On that date, the federal exemption from estate tax increased from $2,000,000 to
57
Doggett v. U.S., 505 U.S. 647, 659 (1992) (Thomas, J., dissenting).
P.A. 05-251 § 69 (Reg. Sess.), modified by P.A. 05-3, § 54 (June Sp. Sess.)
and codified at CONN. GEN. STAT. §§ 12-391 to 12-399 (2007).
59 For a brief discussion of numerous legislative proposals, see Christina
Hennessy, Rell’s proposal to end estate tax languishes, THE ADVOCATE (Stamford,
Conn.), Mar. 11, 2007, at A1.
60 see generally, Robin Watson, estate tax Hangs on despite its unpopularity,
THE ADVOCATE (Stamford, Conn.), Mar. 24, 2008, at A1 (discussing legislative failure to repeal or reform the estate tax).
58
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$3,500,000,61 while the Connecticut exemption remains at
$2,000,000.62 This “decoupling” of the two exemptions now
forces many married taxpayers to decide whether or not to
maximize the federal exemption though their estate planning.
Depending on which choice they make, a married couple
could end up either paying a Connecticut estate tax at the
death of the first spouse to die, thus reducing the amount
available for the surviving spouse, or avoiding the
Connecticut tax at the potential cost of paying hundreds of
thousands of dollars of additional federal estate tax at the
death of the surviving spouse. Neither choice is ideal.
This section examines these major issues confronting
Connecticut taxpayers and practitioners, explores how we got
here, and suggests ways practitioners can respond to the
problems in the absence of legislative action or changes in
DRS policy.
A. background
The saga of the Connecticut Estate Tax started in 2001
when Congress passed, and President Bush signed, The
Economic Growth and Tax Relief Reconciliation Act of 2001
(“EGTRRA”).63 This law called for the elimination of the
federal estate tax between 2001 and 2010.64 After 2011,
absent further legislation, the federal estate tax is scheduled
to return with a $1,000,000 exemption.65
EGTRRA also eliminated the state death tax credit, which
previously provided a dollar-for-dollar federal credit for state
death taxes paid.66 The credit was reduced over a four-year
period, declining by 25% in 2002, 50% in 2003, 75% in 2004
and 100% in 2005 and thereafter.67 As a result, since 2005,
there has been no credit on the federal estate tax return for
state estate taxes.68
61
I.R.C. § 2010(c).
CONN. GEN. STAT. § 12-391(g) (2007).
63 P.L. No. 107-16, 115 Stat. 38 (2001).
64 id.
65 id.
66 id. § 531(a)(1)-(3).
67 id.
68 The state estate tax is now a deduction against the federal gross estate. I.R.C.
§ 2058.
62
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The elimination of the state death tax credit had a profound effect on state estate tax regimes. Prior to EGTRRA,
the estate tax in most states, including Connecticut and the
other New England states, was computed solely by reference
to the amount of the available federal credit.69 As such, the
elimination of the credit eliminated these state estate taxes.70
The impacted states had to determine how to respond to this
complete elimination of this source of tax revenue. Some
states chose not to enact a new form of estate tax, choosing
instead to rely on other sources of state revenue.71 Many other
states, including Connecticut and most other states in the
Northeast, struggled to design and adopt new state estate taxes.72
In a few states, such as New York, the state estate tax had
been drafted in a manner such that it was not effectively
repealed by these changes in federal law.73 Nevertheless,
these states did not emerge completed unscathed. Rather,
political leaders in such states had to consider the possibility
that wealthy state residents would flee to states that no longer
imposed state estate taxes. As such, legislatures in these
states had to decide whether to retain the tax in light of the
competitive pressures resulting from elimination of the tax in
many other states.74
69
In addition, prior to 2005 Connecticut imposed a succession tax at death.
For a detailed discussion, see Jeffrey A. Cooper, interstate competition and
state death taxes: a modern crisis in Historical perspective, 33 PEPP. L. REV. 835,
876-78 (2006).
71 Florida has become the prime example of states taking this approach. see id.
at 878-79 (discussing Florida’s efforts to attract wealthy retirees). Florida’s efforts
are particularly relevant to Connecticut taxpayers since many wealthy Connecticut
residents have second homes in Florida and might choose to change domicile to
avoid Connecticut’s estate tax. see Editorial, a ‘Run away’ tax, CONN. L. TRIB.,
June 13, 2005, at 20 (predicting a mass migration of Connecticut residents to Florida
in response to enactment of the Connecticut estate tax).
72 While the states enacting post-EGTRRA estate taxes typically utilize the same
tax rate structure as under prior law, the amount of a taxpayer’s lifetime exemption from
estate tax varies considerably from state to state. In New York and Massachusetts, for
instance, the exemption is $1,000,000. N.Y. Tax Law § 952; Mass. Gen. Laws ch. 65C,
§ 2A(e). In Rhode Island, the exemption is $675,000. R.I. Gen. Laws § 44-221.1(a)(2). For a discussion of various other state legislative approaches, see Jeffrey A.
Cooper, John R. Ivimey & Donna D. Vincenti, state estate taxes after eGtRRa: a
long day’s Journey into night, 17 QUINNIPIAC PROB. L. J. 317, 324-30 (2004).
73 By its own terms, New York’s state estate tax is computed based on the state
death tax credit as it existed on July 22, 1998. N.Y. Tax Law § 951(a). As such,
EGTRRA’s elimination of the state death tax credit did not repeal New York’s state
estate tax.
74 see Cooper, supra note 70, at 878-80.
70
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B. planning for the connecticut estate tax
As noted, Connecticut’s response to EGTRRA was to
enact a new state estate tax.75 This tax, applicable to decedents dying after December 31, 2004, effectively restored the
state estate tax regime in effect prior to EGTRRA, with the
following significant differences: (1) the tax only applies to
decedents with taxable estates in excess of $2,000,000;76 (2)
at $2,000,000, the tax includes a “cliff ” in the rate table,
where the tax immediately rises from $0 to $101,700;77 (3)
the $2,000,000 state exemption is no longer linked to changes
in the federal estate tax exemption; (4) the $2,000,000 state
exemption differs from the exemption utilized in nearly every
other state; (5) certain lifetime gifts are taxed twice;78 and (6)
the Department of Revenue Services now routinely conducts
its own audit of Connecticut estate tax returns. These six features of the Connecticut estate tax produce a variety of planning issues of which Connecticut practitioners must become
increasingly aware. These issues are addressed in turn below.
1. The $2,000,000 Exemption
The Connecticut estate tax features a $2,000,000 lifetime
exemption per taxpayer.79 As a result, a decedent with a taxable estate of less than $2,000,000 will owe no estate tax.80
This is the most generous exemption provided by any state
that imposes a state estate tax.81 In addition, Connecticut’s
exemption is more generous than the exemption in effect
under the prior state death tax credit system, which was
scheduled to increase from $675,000 at the time EGTRRA
was enacted to a current level of $1,000,000.82
75 In addition, Connecticut enacted a new gift tax. CONN. GEN. STAT. § 12-640
to 12-649 (2007).
76 CONN. GEN. STAT. § 12-391(g) (2007).
77 id.
78 CONN. GEN. STAT. §12-391(c)(1) (2007).
79 CONN. GEN. STAT. §12-391(g) (2007).
80 This assumes that such taxpayer has made no taxable gifts. Any taxable gifts
made in 2005 or thereafter will reduce the taxpayer’s $2,000,000 estate tax exemption. CONN. GEN. STAT. § 12-391(c)(1) (2007).
81 The State of Washington also has a $2,000,000 exemption. WASH. REV. CODE
§ 83.100.020(13).
82 The federal estate tax exemption in 2001 was $675,000, but under law in
effect at that time, it was scheduled to rise to $1,000,000.
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The first key feature of the Connecticut estate tax is thus
a welcome one for most taxpayers: it offers a generous
$2,000,000 exemption that is sufficient to fully insulate the
vast majority of state residents from estate taxation.
2. “The Cliff ” and Planning Around It
While Connecticut’s estate tax does not apply to those
with estates under $2,000,000, it applies with a vengeance
thereafter. The Connecticut estate tax has a particularly
bizarre feature: a “cliff ” in its tax rate schedule. The effect
of the cliff is that a Connecticut taxable estate of $2,000,000
generates no estate tax while a taxable estate of $2,000,001
produces a tax of $101,700.83 One dollar of incremental
assets thus triggers a tax of $101,700.84
The legislature has considered various means of eliminating
the cliff. It passed bills, later vetoed by the Governor, which kept
the $2,000,000 exemption amount but eliminated the cliff by
imposing a tax only on assets in excess of the $2,000,000
exemption.85 Other ideas under discussion have included totally eliminating the tax, or simply eliminating the cliff.86
Although none of these proposals has been enacted, a variety of
ideas remain under legislative review and thus practitioners must
keep abreast of this significant level of legislative activity.
Until and unless the legislature takes action, the cliff will
remain a key feature of Connecticut’s estate tax. Attorneys
therefore must be aware of strategies that can help avoid its
effect by reducing the taxable estate below $2,000,000.
83
CONN. GEN. STAT. § 12-391(g) (2007).
It is fair to note that decedents with estates over $2,000,000 do not incur any
more tax that they would have had they lived in one of the states which still impose
an estate tax. The cliff is the result of Connecticut's adopting a high exemption
amount and collecting a tax on a taxpayer’s entire estate once he or she passes the
$2,000,000 threshold. In addition, if Connecticut had retained the same tax regime
in effect when EGTRRA was repealed, the exemption would be $1,000,000 and the
tax on an estate of $2,000,001 would be $101,700 – exactly the same tax as imposed
today.
85 Under these proposals, a decedent with a taxable estate of $2,050,000 would
have paid a tax on $50,000 of approximately $2,500. Many proposals then increased
the tax rate on some portion of the assets over $2,000,000 to replace the revenue lost
by eliminating the cliff. For example, one proposal would have increased all of the
tax rates, which would have resulted in decedents with estates exceeding approximately $6,000,000 paying more tax than they do under the current law. see supra
note 59 and accompanying text.
86 Obviously these last two ideas would result in reduced state revenue.
84
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Practitioners should consider three major types of planning
techniques.
First, attorneys should consider advising clients to make
nontaxable inter-vivos gifts, such as gifts which qualify for the
$13,000 annual exclusion from federal and Connecticut gift
tax87 or the exclusion for medical and educational gifts.88
While as a general rule, such gifts save estate taxes by removing property from the donor’s estate, they can be particularly
powerful for a donor with an estate hovering around the
$2,000,000 level. For example, a donor with a $2,100,000
estate should consider making at least $100,000 of tax-free
gifts in order to reduce his estate below the $2,000,000
Connecticut exemption and thus entirely avoid estate taxation.
By avoiding the Connecticut cliff, those $100,000 of gifts will
save the taxpayer over $100,000 of state estate taxes.
Even if such a taxpayer fails to undertake such planning, a
creative attorney might be able to avoid the effect of the cliff
after the client’s death. It is crucial to realize that the cliff
applies only when the taxable estate, after deductions,
exceeds $2,000,000. As such, although it may at first seem
counterintuitive, an estate can save considerable tax dollars
by incurring additional administrative expenses. For example, if a decedent has a taxable estate of $2,010,000, a family member executor who might not otherwise take an executor’s fee may decide to take one. If the executor takes an
appropriate fee, the taxable estate will be reduced below
$2,000,000, thus saving over $100,000 in tax. The fee will be
taxable income to the executor, but the income tax may be a
small price to pay to avoid the entire Connecticut estate tax.
Finally, many residents are choosing to try to avoid the cliff
as part of their pre-death estate planning. As estate planning
lawyers become more comfortable with Connecticut’s estate
tax regime, they have devised increasingly creative solutions
to the cliff problem. For example, some lawyers have altered
the formula used to fund a client’s estate tax sheltered trust at
death, pegging the formula to the state estate tax exemption
87
88
I.R.C. § 2503(b); CONN. GEN. STAT. § 12-643(a) (2007).
I.R.C. § 2503(e); CONN. GEN. STAT. § 12-643(a) (2007).
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rather than the federal exemption.89 Other lawyers have considered even more novel solutions. One of these approaches
gaining increased attention is to include a charitable bequest
in a client’s will or trust agreement, leaving all assets over
$2,000,000 to one or more charities in order to reduce the
taxable estate to $2,000,000 and avoid state estate tax.90
Frequently, these charitable bequests are determined by complicated formulas designed to operate only where the
Connecticut taxable estate is over $2,000,000 but less than
$2,107,391, the level of assets at which the cliff results in a
Connecticut estate tax applying at over a 100% marginal
rate.91
By leaving this portion of the estate to a taxdeductible charity and thus avoiding the estate tax cliff, these
decedents save more in taxes than they leave to charity.
Properly implemented, this charitable planning technique
can save a significant amount of taxes. For example, if the
taxable estate is $2,010,000 and the decedent makes a
$10,000 bequest to charity, his beneficiaries will keep
$2,000,000. If the $10,000 bequest is not made, the estate
will owe over $100,000 in tax and the beneficiaries will
receive closer to $1,910,000.92
While a testament to the creativity of estate planners, the
rise of such planning techniques underscores the problems in
the legislature’s decision to implement a tax with a cliff. In
an effort to avoid the consequences of the cliff, many families must undertake exceedingly complex planning, while
others will make charitable bequests not out of any spirit of
charitable giving but merely because it saves the family
money. This is not good tax policy.
89 For a more detailed discussion of this approach, see infra notes 95 to 96 and
accompanying text.
90 Another approach leaves the assets to family members but allows them to disclaim a portion to one or more charities.
91 The complex provisions needed to implement such a strategy also must
address the possibility of lifetime gifts as well as the impact of real or tangible personal property owned by the decedent in other states. For a detailed discussion, see
the materials prepared by Attorney Mark W. Dost for the “Coping with Estate Tax
Decoupling: Problem Solving” Conn. Bar Assoc. seminar (December 5, 2008)
(available at http://www1.ctbar.org/CLEDetail2.aspx?cd=3770).
92 The advantage of this technique declines as the estate rises closer to
$2,107,391. As the estate grows, the charitable gift necessary to avoid estate taxation also rises. The result is a smaller difference between the charitable gift made
and the estate tax saved.
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3. Maximizing Federal and Connecticut Exemptions:
The Connecticut QTIP Election
Since the enactment of the Connecticut estate tax, married
couples have needed to consider the tax consequences of the
different exemptions for Connecticut estate tax purposes and
federal estate tax purposes. Traditionally, estate planning
focused on the federal estate tax exemption, and typical tax
planning involved setting aside the amount of the federal
exemption in a “credit shelter trust” for the surviving spouse
on terms that would exclude the trust from the survivor’s
estate.93 After the enactment of the Connecticut estate tax,
this estate plan has an unintended consequence: funding a
trust with the maximum federal exemption amount would
cause the credit shelter trust to hold more than the
Connecticut exemption, thus subjecting the trust to state taxation at the first spouse’s death.
While a serious concern in theory, Connecticut taxpayers
enjoyed a bit of a reprieve from this tax issue. From 2006 to
2008, the federal exemption and the state exemption were the
same. As a result, an estate plan based on federal tax concepts worked equally well for Connecticut purposes.94 The
concern about owing a tax at the first death thus was theoretical for most taxpayers.
When the federal exemption increased to $3,500,000 in
2009, the concern became not only real but truly commonplace. Nearly every taxpayer now will have a federal exemption which exceeds his or her state exemption. As a result, if
a couple's estate planning documents fund a traditional credit shelter trust up to the maximum $3,500,000 federal exemption, the estate of the first spouse to die will exceed the
$2,000,000 Connecticut exemption and the estate will owe
$229,200 in Connecticut estate tax.
In some cases it may be appropriate to pay this tax at the
first death. But for most couples it will not make sense.
93
This preserves the exemption of the first spouse to die.
Prior to 2009, a taxpayer’s federal and Connecticut exemptions could be different in limited circumstances. For example, the federal exemption remaining at
death could be less than the Connecticut exemption as a result of lifetime gifts which
were not considered gifts for Connecticut purposes, such as gifts of out-ofConnecticut property or taxable gifts made prior to 2005.
94
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They will want to preserve as much of the property as possible for the surviving spouse and defer the Connecticut tax
until the second death. Clients seeking to achieve this optimal result will need to consider a number of significant
changes to their estate planning documents. One possible
response is to change the division formula in their estate
planning documents.95 The amount set out as the credit shelter trust no longer will be based on the federal credit alone.
Instead, the amount of the credit shelter trust will be based on
the lesser of the federal exemption and the state exemption.
In 2009, this generally will result in a credit shelter trust of
$2,000,000.96 However, couples who take this approach
potentially will lose the benefit of sheltering the $1,500,000
difference between the state and federal exemptions from
federal tax at the second death.
In other states, such as Massachusetts and Rhode Island, a
taxpayer can maximize his or her estate tax planning by
directing the difference between the federal and state exemptions to a trust designed to qualify for the state marital deduction but not the federal marital deduction.97 This enables the
taxpayer to maximize use of both the federal and state
exemptions, optimizing the tax results and deferring all taxes
until the second spouse’s death.
The Connecticut estate tax law seemingly provides Connecticut taxpayers with an equivalent planning opportunity:
An election under said Section 2056(b)(7) [the QTIP marital
95 Couples who have “disclaimer” wills or trusts do not necessarily need to
change their documents, but will need to carefully consider both the federal exemption and the state exemption when deciding how much to disclaim after the first
spouse dies.
96 This example assumes that the taxpayer is a Connecticut resident who owns
no property located in other states and who has made no post-2004 taxable gifts.
97 A taxpayer wishing to achieve this result would execute a will or trust
designed to fund an estate tax shelter trust with an amount of assets equal to the lesser of the federal or state exemption from tax. The will or trust document then would
establish a second trust to hold the difference between the state exemption and the
federal exemption. This trust would be designed as a Qualified Terminal Interest
Property trust (“QTIP trust”), eligible for the marital deduction under I.R.C. §
2056(b)(7). The executor of the estate of the first spouse to die could then decide
whether to make the QTIP election for federal and state purposes. Generally, the
executor would not make a federal QTIP election for this trust in order to use the
balance of the federal exemption. However, the executor typically would make the
state QTIP election to defer the state estate tax until the second death.
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deduction election] may be made for state estate tax purposes regardless of whether any such election is made for federal estate tax purposes.98
However, what the legislature giveth, the DRS taketh
away. DRS issued Special Notice 2005(10), which provides
in relevant part as follows:
[W]here an executor or administrator of a decedent’s estate
made an election under I.R.C. §2056(b)(7) (QTIP Election)
with respect to any qualified terminable interest property
(QTIP), that election will be binding for Connecticut estate
tax purposes, and no Connecticut QTIP election … may be
made. Where an executor or administrator of a decedent’s
estate has made no such federal QTIP election, a Connecticut
QTIP election may be made with respect to any property that
would otherwise be QTIP but for the fact that the executor or
administrator did not make a federal QTIP election.
DRS thus has taken the position that if an estate makes
any QTIP marital deduction for federal purposes, it must
make the exact same election for state purposes. As such, the
ability to make a state QTIP marital deduction for a trust
holding the difference between the Connecticut exemption
and federal exemption will depend upon whether the executor chooses to make a QTIP marital election for any other
property in the estate. This interpretation not only defeats the
intent of a separate state marital deduction but ignores the
seemingly clear language of a statute which allows a taxpayer to make a state marital deduction “regardless of whether
any such election is made for federal estate tax purposes.”99
This interpretation frustrates the estate planning goals of
many clients and provides a significant trap for the unwary
practitioner.100
4. Multistate Estate Planning, Including Choice of
Domicile
As noted above, the $2,000,000 Connecticut estate tax
exemption is greater than the exemption in all of the sur98
CONN. GEN. STAT. §12-391(f)(2) (2007).
CONN. GEN. STAT. § 12-391(f)(2) (2007).
100 On December 5, 2008, the Connecticut Bar Association held a seminar entitled “Coping With Estate Tax Decoupling: Problem Solving.” It included drafting
suggestions to consider in light of the differences between the Connecticut exemption and the federal exemption. Information regarding the seminar materials is
available at http://www1.ctbar.org/CLEDetail2.aspx?cd=3770.
99
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rounding states. At the same time, fully half of the fifty states
impose no state estate tax at all.101 Practitioners thus need to
worry about two competing problems: (1) a client who owns
property in another state may incur a tax in that state, and (2)
a client may decide to abandon a Connecticut domicile and
relocate to a state that does not have an estate tax.
Most of the states that imposed an estate tax kept the
exemption in effect under the federal state death tax system in
effect prior to EGTRRA. Some of these states, such as Rhode
Island, retained the $675,000 exemption in effect at the passage of EGTRRA. Many others, such as New York and
Massachusetts, have an exemption of $1,000,000, reflecting
increases to the estate tax exemption that had be scheduled to
take place prior to the passage of EGTRRA. Connecticut residents owning property in these states need to be concerned
about and plan for the taxes in these other states.
These various state tax regimes can interact in complex
ways. For example, consider a married couple who jointly
own a vacation house worth $1,000,000 in Massachusetts,
while the first spouse to die also owns $2,000,000 of other
assets in Connecticut. At the first spouse’s death, his
$2,000,000 of assets pass to a credit shelter trust while the
vacation house passes to the surviving spouse and qualifies
for the federal marital deduction.102 This plan generates neither federal nor Connecticut estate tax. Yet, surprisingly it
triggers a Massachusetts tax because the decedent’s taxable
estate exceeds the $1,000,000 Massachusetts exemption.
This is true even though the decedent’s only out-of-state
property passes to the surviving spouse and thus qualifies for
the marital deduction.103
Consider a second, more commonplace example. As
noted above, some clients might seek to avoid state estate
taxes by tying the formula used to fund the credit shelter trust
Cooper, supra note 70, at 841.
This assumes that the spouse is a United States citizen. I.R.C. § 2056.
103 The tax is a fraction of the tax that would be owed by a Massachusetts resident on the same assets. The taxable estate would be $2,000,000 and the tax would
be 1/5 of the Massachusetts tax on a $2,000,000 taxable estate. The 1/5 fraction is
formed from a numerator of $500,000 (the decedent’s share of the joint property),
and a denominator of $2,500,000 (the total estate).
101
102
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to the lesser of any applicable federal or state exemption.104
Many formulas so drafted will operate to restrict the credit
shelter trust to the lowest applicable state exemption. Thus,
if a client owns any out-of-state property, even a property of
modest value such as a vacation timeshare,105 the formula
could operate to cap the credit shelter trust at the $675,000 or
$1,000,000 exemption in effect where the out-of-state real
estate is located. This result may frustrate the intent of a
Connecticut resident who expected to maximize the higher
Connecticut exemption.
Finally, practitioners need to inform clients that many
states have no estate tax. As a result, many clients, particularly those with second homes in other states, may elect to
abandon their Connecticut domicile to avoid the estate tax.
The Connecticut Department of Revenue Services and the
Connecticut Office of Policy and Management explored this
possibility through a study they recently conducted at the
request of the Connecticut legislature.106 The study, while
providing only a limited sampling, presented some evidence
that many Connecticut residents are at least contemplating
such a course of action.
5. Double Taxation of Certain Lifetime Gifts
The Connecticut estate tax deviates from the prior estate
tax regime by defining the taxable estate as the sum of all of
a taxpayer’s Connecticut taxable gifts made after December
31, 2004, and Connecticut assets owned at death.107 The
prior system based the tax simply on the assets owned by the
decedent at death and excluded lifetime gifts. The new
Connecticut system now more closely resembles the federal
estate tax in this respect.
The federal system logically provides that an asset can
only be subject to taxation once: either to gift tax or estate
tax, but not both. The federal statute accomplishes this result
see supra notes 95 to 96 and accompanying text.
This assumes such property is classified as real property under local law and
thus subject to state estate taxation.
106 The study, dated February 1, 2008, is available at http://www.ct.gov/
drs/lib/drs/research/estatetaxstudy/estatetaxstudyfinalreport.pdf#48817. For a discussion of the study, see Frank S. Berall, domicile, Residence and citizenship, 82
CONN. B. J. 249, 275-76 (2008).
107 CONN. GEN. STAT. § 12-391(c)(1) (2007).
104
105
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161
by providing as follows:
For purposes of paragraph (1)(B), the term “adjusted taxable
gifts” means the total amount of the taxable gifts … made by
the decedent …, other than gifts which are includible in the
gross estate of the decedent.108
The Connecticut statute does not include an equivalent
limitation. Rather, it provides as follows:
“Connecticut taxable estate” means (A) the gross estate less
allowable deductions, as determined under Chapter 11 of the
Internal Revenue Code, plus (B) the aggregate amount of all
Connecticut taxable gifts, as defined in section 12-643, made
by the decedent for all calendar years beginning on or after
January 1, 2005.109
The Department of Revenue Services has read this section in
a manner which makes it possible for the same property to be
counted twice for tax purposes. This most commonly occurs in
situations where a taxpayer makes a gift of property during his
or her lifetime but retains the right to use the property. For
example, assume a taxpayer makes a gift of a remainder interest in real property but retains a life estate in that property. The
transaction would constitute a taxable gift. In addition, retention of the right to live in the property until death will cause the
full value of the property to be included in the taxpayer’s estate
at death.110 While the federal government will not tax that
same transaction twice, Connecticut seemingly will tax the
property both at the time of the gift and at the taxpayer's death.
A similar result will occur when a taxpayer establishes a
Qualified Personal Resident Trust (“QPRT”)111 or Grantor
Retained Annuity Trust (“GRAT”)112 and fails to survive the
term of the trust.
108
I.R.C. § 2001(b) (emphasis added).
CONN. GEN. STAT. § 12-391(f)(2) (2007).
110 I.R.C. § 2036.
111 A settlor creating a Qualified Personal Residence Trust establishes a trust to
hold an interest in a personal residence and retains the right to use the property for a
fixed term of years. The settlor makes a gift upon creation of the trust equal to the
value of the remainder interest in the trust at the time the trust was created. If the settlor survives the term, the property is removed from the settlor's estate. If the settlor
dies during the term, the property is included in the settlor’s estate for both federal and
Connecticut purposes. As a result, Connecticut will tax both the value of the remainder interest at the time of the gift and the date-of-death value of the full property.
112 A settlor creating a Grantor Retained Annuity Trust establishes a trust for a
109
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The double taxation problem appears to be the result of a
simple oversight by the legislature in drafting the statute.
However, the legislature and the Governor have not acted on
several attempts to fix this technical problem. Last year, they
failed to support a stand-alone bill which would have merely
inserted the italicized federal language into the Connecticut
statute. Until Connecticut clarifies its governing law, practitioners must consider the potential for double taxation when
implementing sophisticated estate tax planning including gifts
of future interests, QPRTs, GRATs and similar techniques.
6. A New Audit Initiative at the Department of
Revenue Services?
Traditionally, the DRS routinely deferred to the results of
federal estate tax audits and accepted final federal values as
binding for state purposes. Anecdotal evidence suggests that
the DRS has adopted a new policy in this regard, with many
practitioners reporting at Bar Association meetings that the
DRS frequently is requiring estates to renegotiate values that
were compromised with the federal government during its
audit of the federal estate tax returns. Although the DRS has
not published any official pronouncement regarding this
change, attorneys have experienced a shift in their relations
with the taxing authorities and have become increasingly
frustrated with DRS administrative procedures in this area.
For Connecticut taxpayers, the delays and expenses resulting from dual federal and state audits mark yet another complication of the new Connecticut estate tax regime. This provides another economic incentive for taxpayers to consider
moving out of Connecticut and makes tax compliance more
difficult and more costly for those who remain.
fixed term of years, during which time he or she is entitled to a fixed annual annuity payment from the trust. At the conclusion of the trust term, any remaining assets
pass to the settlor’s designated beneficiaries. If the settlor dies during the term, the
property is included in the settlor’s estate for both federal and Connecticut purposes. For a more detailed discussion of GRATs, see Steve R. Akers, Going the extra
mile with GRats – Reflections on optimal planning strategies, PROB. & PROP.,
Nov.-Dec. 2004, at 24, 24.
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DEVELOPMENTS IN CONNECTICUT
CRIMINAL LAW: 2008
B Y T IMOTHY H. E VERETT *
This article surveys criminal cases decided by
Connecticut’s higher courts in 2008, without hope of completeness but with the aim to identify cases that are “must
reads” and “must re-reads” for members of the Bar. The
Connecticut Supreme Court decided several especially significant cases in 2008. In a long, nonunanimous decision, state
v. deJesus,1 the Supreme Court grappled with the relation
between the new Code of Evidence and the Supreme Court’s
inherent powers under the common law and the state constitution. After concluding that adoption of the Code of Evidence
had not altered its own authority to make common- law rules
of evidence, the deJesus Court announced a new “propensity” exception to the law governing use of uncharged misconduct evidence; the Court has already begun to map out the
parameters of this propensity exception.2 In state v.
salamon,3 the Court corrected its past construction of the
abduction element in kidnapping, distinguishing it from
unlawful restraint; in so doing the Court overruled long-standing precedent that the Court had affirmed as recently as 2002.
By design the Appellate Court decides most of the cases
on its large docket by careful application of established legal
paradigms, not by reconsidering precedent and fashioning
novel law.4 The Appellate Court plays a critical role in the
development of Connecticut criminal law and procedure,
both through those relatively few of its decisions that the
Supreme Court selects for further review and, as importantly,
by providing “the final word” in the vast majority of criminal appeals taken from the Superior Court. Its middle
* Clinical Professor of Law, University of Connecticut School of Law.
1 288 Conn. 418 (2008).
2 State v. Snelgrove, 288 Conn. 742 (2008); State v. Johnson, 289 Conn. 437
(2008).
3 287 Conn. 509, 513 n.6, 542-43 (2008) (overruling State v. Luurtsema, 262
Conn. 179 (2002)).
4 Because the Appellate Court typically sits in panels of three, it is significant
when the Court sits en banc in a criminal case, but the Court did not do so in 2008.
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tier vantage point and high volume docket place the
Appellate Court in a special role, with comparatively direct
and usually final oversight of actual criminal practice in the
trial courthouses of the State.5 This review cannot cover the
extensive array of cases decided by the Appellate Court last
year, so it includes a somewhat idiosyncratic sampling of
some of the more interesting ones.
I. A PPELLATE B OX S CORES
AND
R ECAPS
In 2008 the Connecticut Supreme Court decided fifty-two
cases involving criminal law. Forty-three were direct
appeals from criminal judgments in the Superior Court, seven
were appeals of Superior Court decisions on habeas corpus
petitions, one was a Writ of Error from conviction of summary contempt, and one was an interlocutory appeal authorized by the Chief Justice in the interests of justice pursuant to
General Statutes Section 52-265a. The Supreme Court fashioned its docket by transferring twenty-one cases from the
Appellate Court this year and granting certification to review
issues previously decided in the Appellate Court in another
nineteen cases. Of the cases first decided by the Appellate
5 For just one example of the court’s important vantage point on the day-to-day
realities of actual criminal practice in G.A. and J.D. courthouses, see Chief Judge
Flynn’s concurrence in state v. outlaw, 108 Conn. App. 772, cert. denied, 289
Conn. 915 (2008). The outlaw majority rejected the defendant’s sufficiency of the
evidence challenge to a jury’s conviction for willful failure to appear for sentencing
in a previous criminal case. id. at 776-80. The defendant testified that he had been
in the courthouse on the date in question but that his lawyer told him that he could
leave and that sentencing would be rescheduled. Chief Judge Flynn agreed with the
sufficiency holding, but rued the fact that on appeal there was no claim that the trial
court erred when it failed to give a requested jury charge on the role of trial counsel’s advice. id. at 788. Chief Judge Flynn’s concurrence drew attention to an important reality of criminal practice in Connecticut courthouses: “My concern lies not in
what the majority opinion says, but in what it does not say. on a daily basis, defendants are instructed by their attorneys, by court personnel and by prosecutors that
their cases will not be going forward on that particular day or that a dismissal or
nolle will be recommended and, therefore, that they need not be present and are free
to leave. This avoids wasting the time of both the court and Connecticut citizens who
are called to court when, for one good reason or another, cases cannot be heard or
disposed of on that day can be disposed of quickly without the presence of the defendant. early every morning, lines form in the courthouses of our superior courts,
filled with defendants waiting to meet with prosecutors on motor vehicle infractions.
Many of these defendants are told that the case will be nolled for various reasons and
that they should leave the courthouse. unless the presiding judge has forbade such
common practices a defendant should be able to rely on such statements without facing criminal charges.” (Emphasis added.) id. at 787-88.
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Court, the Supreme Court affirmed nine times and reversed
or modified the Appellate Court’s decision ten times. The
Supreme Court sat en banc in three criminal cases, but fell
short of unanimity in deciding each.6
The Supreme Court did not review any capital cases resulting in the death penalty7 in 2008, though it did review a capital case in which a young defendant was given a life sentence
without the possibility of parole.8 The Court decided a broad
range of issues in the administration of criminal justice and
constitutional rights, including protection of a complainant’s
mental health records,9 calculation of the time that a defen6 State v. DeJesus, 288 Conn. 418 (2008) (6-1 decision; Chief Justice Rogers’
plurality opinion, joined by two justices, id. at 420-77, held that adoption of
Connecticut Code of Evidence was not meant to alter the Supreme Court’s commonlaw authority to adopt and modify rules of evidence; Justice Palmer, concurring, id.
at 477-88, agreed that the Court retained its common-law authority over evidentiary
law, following a different analytic path; Justice Zarella, joined by Justice Sullivan,
id. at 488-94, also concurred, “like Justice Palmer, that the judges of the Superior
Court do not possess authority under our constitution to divest this court of its inherent authority to change and develop the law of evidence.” id. at 490; Justice Katz,
dissenting, id. at 494-547, with the view that the process leading to the adoption of
the Code did alter the Supreme Court’s common-law authority over established, i.e.,
codified, rules of evidence and that it is now limited to interpreting and applying
those rules in individual cases; see discussion, infra); State v. Salamon, 287 Conn.
509, 517-50 (2008) (4-3 decision overruling long-standing interpretation of the
abduction element for kidnapping by recognizing that merely incidental restraint of
victim during commission of another offense constitutes unlawful restraint, not
abduction); State v. T.R.D., 286 Conn. 191, 198-206 (2008) (5-2 holding that canvas
of defendant was inadequate to establish waiver of right to trial counsel under federal constitution because canvas did not ensure defendant had a “meaningful appreciation” of his criminal exposure if convicted).
7 The Supreme Court heard extended argument in a capital case, State v.
Courchesne, on March 19, 2008, but as of June 15, 2009, the court has not issued its
opinion. Meanwhile, a bill to abolish the death penalty passed both houses of the
state legislature, a surprising turn of events, given the enduring shock waves stemming from the home invasion and multiple murders in Cheshire, Connecticut, in the
summer of 2007. Governor Rell has vetoed the abolition bill.
8 State v. Allen, 289 Conn. 550 (2008).
The allen Court rejected the defendant’s claim that his sentence of life imprisonment without the possibility of parole
violates the Eighth Amendment prohibition on cruel and unusual punishment
because he was under the age of eighteen at the time of the commission of the
offense. id. at 582-85 (tracking Delaware Supreme Court’s reasoning in rejecting “an
identical claim” in Wallace v. State, 956 A.2d 630 (Del. 2008)).
9 State v. Kemah, 289 Conn. 411 (2008). Justice Katz wrote the kemah opinion, sustaining the state’s public interest appeal and holding that a complaining witness who voluntarily disclosed confidential mental health records to police and prosecutors had not thereby broadly waived statutory confidentiality of those records so
as to relieve trial court of its gate-keeping function under state v. esposito, 192
Conn. 166 (1984). Under esposito “two levels of consent from the holder of the
privilege are required before a defendant may obtain access to confidential
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dant may be kept in placements intended to restore his competency,10 the need to instruct a jury on the distinction
between “true threats” and constitutionally protected
speech,11 when a continuance at the state’s request converts to
a nolle prosequi,12 and various suppression, consolidation and
severance, evidentiary, and trial process issues.
If the Supreme Court docket year included a sizeable
squadron of criminal cases, the Appellate Court docket comprised a veritable flotilla of criminal cases demanding decision. By written opinions (not counting memorandum decisions), the Appellate Court decided one hundred sixty-four
direct appeals from judgment in criminal cases, sixty-eight
appeals in habeas corpus cases, and five other cases presenting
criminal law issues via less common procedural actions, such
as petitions for a new trial and extraordinary writs.
As noted before, the Appellate Court’s work is most often the
last word in a criminal case. The Court decided too many cases
to recite. Just a few of the interesting decisions show the range
of issues the Court handles. In state v. Re13 the Court held that
it was not double jeopardy to convict and sentence a defendant
for both manslaughter in the second degree and manslaughter in
the second degree with a motor vehicle where the defendant,
driving while intoxicated, caused the death of one person.14 In
records—consent to an in camera review and consent to disclose to the defendant
any impeachment or exculpatory evidence that the court’s review yields. . . .”
kemah, 289 Conn. at 426.
10 State v. Jenkins, 288 Conn. 610, 625-28 (2008) (multiple placements are
cumulative in determining whether18-month limitation in CONN. GEN. STAT. §5456d(i) has been exceeded).
11 State v. Cook, 287 Conn. 237, 250-53, cert. denied, 129 S.Ct. 464, 172
L.Ed.2d 328 (2008) (reversed conviction for carrying a dangerous weapon, a wooden table leg, because “the trial court improperly failed to instruct the jury that it
could not find the defendant guilty . . . unless it found, on the basis of the defendant’s conduct or statements, that his alleged threat to use the table leg constituted a
true threat and not simply idle talk, banter or some other form of protected expression.” id. at 252).
12 State v. Winer, 286 Conn. 666 (2008) (state request to put case on firm jury
list was not request for continuance triggering thirteen-month nolle and erasure rule
in CONN. GEN. STAT. §54-142a(c)).
13 State v. Re, 111 Conn. App. 466 (2008), cert. denied, 290 Conn. 908 (2009).
14 id. at 470-72 (2008) (CONN. GEN. STAT. §53a-56(a)(1) and CONN. GEN. STAT.
§53a-56b(a) are not the “same offense” under blockburger test and there is no indication in text or history of statutes that legislature did not intend to authorize conviction
and punishment for each separately; however, the Court did find that the judgments
of conviction on two counts of driving while intoxicated was double jeopardy).
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developments in connecticut cRiminal law: 2008
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state v. martin15 the Court held that it was double jeopardy to
convict a defendant of both felony possession of marijuana for
his possession of 4.4 ounces of marijuana and attempted possession of more than a kilogram of marijuana where the police
had removed all but the 4.4 ounces of marijuana from a mail
package containing 18 pounds of marijuana before the defendant took possession of what he expected would be the larger
amount.16 In state v. bonner17 the Court held that the trial
court properly applied collateral estoppel when it refused to
hold an evidentiary hearing on the defendant’s motion to suppress narcotics found after his arrest which he claimed was
not supported by probable cause, because another court in a
murder case had heard and rejected his motion to suppress his
statement to police as fruit of an illegal arrest.18 In state v.
ayuso19 the Court held that a trial witness was properly permitted to invoke his Fifth Amendment privilege and that the
trial court properly refused to order the state to use its statutory power to accord immunity to certain witnesses. In state
v. callahan20 the Court found that the trial court had not
erred in terminating a defendant’s accelerated rehabilitation
upon finding that she “had not complied with the court’s
order to send a genuine letter of apology to a person whom
the defendant had accused of harassment.”21 In state v.
15 State v. Martin, 110 Conn. App. 171 (2008), cert. granted, 289 Conn. 944
(2008) (certified issue: "Did the Appellate Court correctly conclude that a conviction for possession of four ounces or more of marijuana in violation of General
Statutes § 21a-279 (b) should be merged with the conviction of attempt to possess
one kilogram or more of marijuana with the intent to sell in violation of General
Statutes §§ 21a-278 (b) and 53a-49?").
16 id. at 175-80 (blockburger test not appropriate where “but for the actions of
the police, the defendant would [not] have been charged with multiple offenses.” id.
at 177).
17 State v. Bonner, 110 Conn. App. 621, cert. denied, 289 Conn. 955 (2008).
18 id. at 625-33.
19 105 Conn. App. 305, 309-19, cert. denied, 286 Conn. 911 (2008).
20 108 Conn. App. 605, cert. denied, 289 Conn. 916 (2008).
21 id. at 608. The trial court found that the defendant’s letter was “‘an insincere
apology’” and the Appellate Court agreed, rejecting the defendant’s argument “that
the court was bound to find acceptable as an apology any document using any form
of the word ‘apology,’ no matter how hedged by accompanying verbiage.” id. at 612.
The Court also found that any claims that the condition set by the court interfered
with the defendant’s right against self-incrimination and was an acknowledgment of
guilt inconsistent with the AR program were waived when the defendant agreed to
the condition when the program was granted. id. at 610-11.
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Houle22 the Court reversed and ordered a new trial where the
jury’s conviction of the defendant of third degree arson and
first degree criminal mischief depended on “proof of irreconcilably inconsistent states of mind.”
II. W HAT I S T HE C ONNECTICUT C ODE O F E VIDENCE ?
The philosophically most far-reaching Supreme Court
decision of the year was its en banc, split decision in state v.
deJesus,23 affirming the Appellate Court’s 2005 decision
upholding the application of a special liberal rule of admissibility for uncharged misconduct evidence in prosecution of
sex offenses.24 However, the Supreme Court affirmed on
alternative grounds unavailable to the Appellate Court,
which had correctly considered itself bound by decisional
law of the Supreme Court prior to deJesus. Prior decisional
law had grounded the liberal rule of admissibility in exceptions to the general rule against character evidence, though it
sometimes required strained logic to apply them to uncharged
misconduct in sex prosecutions.
The Connecticut Code of Evidence, adopted in 2000,
makes no express reference to the liberal rule,25 but the Code
was intended to incorporate, unaltered, the decisional law of
evidence in existence at the time of the Code’s adoption.26
Noting that its status as “an intermediate appellate court”
barred it from adopting the opinion of a dissenting Supreme
Court justice27 or otherwise reconsidering or revising
Supreme Court precedent, then Judge (later Justice) Schaller
for the Appellate Court in 2005 had rejected DeJesus’s arguments asking for a new gloss on, or outright rejection of, the
liberal rule of admissibility.28 That constituted the central
22
State v. Houle, 105 Conn. App. 813, 817-18, 827 (2008).
288 Conn. 418 (2008).
24 State v. DeJesus, 91 Conn. App. 47 (2005), cert. granted, 279 Conn. 912 (2006).
25 see State v. Kulmac, 230 Conn. 43, 60-61 (1994).
26 see Code of Evidence §1-2(a) and Commentary thereto (“Purposes of the
Code.”).
27 The reference is to Justice Katz’s dissent in kulmac, 230 Conn. at 86-88. Justice
Katz was already on record with her position that, post-Code, the Supreme Court itself
no longer could change the liberal rule of admissibility—which she continued to
oppose. see State v. Sawyer, 279 Conn. 331, 362-66 (2006) (Katz, J., concurring).
28 deJesus, 91 Conn. App. at 58 n. 4 and 60 n. 5.
23
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issue29 the Supreme Court certified for appeal: “Does this
court, or any court, have the authority in light of the
Connecticut Code of Evidence, to reconsider the rule that the
introductions of prior sexual misconduct of the defendant in
sexual assault cases, is viewed under a relaxed standard?”30
The deJesus Court, sitting en banc, spoke in many voices in
answering the certified question in the affirmative.31 The
upshot is that adoption of the Code did not diminish the
Supreme Court’s pre-Code authority to change or modify evidence law and that the Supreme Court itself is not bound by
the Code.
The deJesus decision resolved that the Code of Evidence
does not bind the Supreme Court, but it leaves other issues
concerning the legal force of the Code in a state of uneasy
irresolution. What, if anything, is “new” in the law of evidence after the Code’s adoption by vote of the judges of the
Superior Court in 2000? Is it an actual “code” setting forth
rules that govern evidence law or is it merely a well-composed snapshot of the common-law principles that govern
evidence practice? Does the Code have any effect whatsoever on the common-law process by which Connecticut evidence law has always been applied and developed? Is the
Code less binding on trial courts than the Connecticut
Practice Book? Is there any reason hereafter to change the
Code except to conform to any new appellate decisions that
change the common law of evidence or to conform to any
statutes that change evidence law?
In state v. sawyer32 in 2006 the Supreme Court had recognized that the Code’s very existence raised a question regard29 The Supreme Court also agreed to review the state’s claim that the Appellate
Court had incorrectly reversed the defendant’s kidnapping conviction on vagueness
grounds. The Supreme Court affirmed on alternate grounds, applying its just minted clarification of the distinction between the abduction element of kidnapping and
unlawful restraint. State v. DeJesus, 288 Conn. at 421, 428-39 (applying State v.
Salamon, 287 Conn. 509, 542 (2008)).
30 State v. DeJesus, 279 Conn. at 912; State v. DeJesus, 288 Conn. at 421 n. 4.
31 On the Code status issue, Chief Justice Rogers (joined by Justices Norcott
and Vertefeuille) wrote a plurality opinion, Justice Palmer concurred in a separate
opinion, Justice Zarella (joined by Justice Sullivan) concurred separately, and
Justice Katz dissented. deJesus, 288 Conn. at 439-62 (Rogers, C.J.), 477-88
(Palmer, J.), 489-94 (Zarella, J.), 494-528 (Katz, J.).
32 279 Conn. 331 (2006).
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ing the ongoing vitality of the Court’s pre-Code power to modify and change Connecticut’s common-law rules of evidence
(though not its statutory rules of evidence). But the sawyer
majority did not find it necessary to decide whether the Code
had changed the high court’s role in changing, as opposed to
interpreting and applying, Connecticut’s common-law rules of
evidence.33 Although Justices Borden and Katz staked out
clear positions on the legal foundation for the Code’s authority,34 the sawyer majority hesitated.35 Meanwhile, those who
had helped to draft the Code went public with their explanations of its purposes and provenance.36 In April 2008 the
Supreme Court side-stepped another opportunity to define the
nature of the Connecticut Code of Evidence.37 Then, in
33 The sawyer majority opinion tergiversated on the implications of the Code’s
adoption for the Court’s own authority: “[W]e acknowledge that, since 2000, the
year in which the Connecticut Code of Evidence was adopted, the authority to
change the rules of evidence lies with the judges of the Superior Court in the discharge of their rule-making function. . . . To the extent that our evidentiary rules may
be deemed to implicate substantive rights, we believe that it is unclear whether those
rules properly are the subject of judicial rule making rather than the subject of common-law adjudication.” id. at 331 n. 1.
34 Justice Katz and Justice Borden, in separate opinions, each declared unambiguously that changes to existing evidence law set out in the Code may be made
only by the judges of the Superior Court in an exercise of their “rule making” function and with the guidance of its evidence oversight committee. Katz and Borden
each declared that in the Code era the Supreme Court retains authority only to interpret and apply rules of evidence. id. at 362-66 (Katz, J.), 366-93 (Borden, J.).
35 see discussion of State v. Sawyer, 279 Conn. 331 (2006) and State v. John
M., 94 Conn. App. 667, subsequently reversed, 285 Conn. 528 (2008), in C. TAIT
AND E. PRESCOTT, TAIT’S HANDBOOK OF CONNECTICUT EVIDENCE (4th ed. 2008) §
1.3, pp. 17-19 (“These two cases undermine the status of the Code as the definitive
repository of the rules of evidence, and vitiate the basic purpose of a code to encapsulate the rules in one authoritative source. Until these issues are resolved, the hegemony of the Code will remain in limbo.” id. at 17). See also discussion in T.H.
Everett, developments in connecticut criminal law: 2006, 81 CONN. BAR J. 161,
171-75 (2007) (“SETTING THE BOUNDS FOR EVIDENTIARY REVIEW UNDER THE CODE:
state v. sawyeR”).
36 The chair of the committee that drafted the Code, Justice Borden, had already
published in this journal. D. Borden, the new code of evidence: a (very) brief
introduction and overview, 73 CONN. BAR J. 210-20 (1999). Professor Tait, who
served on the drafting committee and serves on the evidence oversight committee,
and his co-author Judge Prescott examined the relation of the Code to the state constitution, the common law, future case law, statutory rules of evidence, and the
Practice Book. C. TAIT AND E. PRESCOTT, TAIT’S HANDBOOK OF CONNECTICUT
EVIDENCE, §§ 1.2, 1.3, 1.4, 1.5 (4th ed. 2008).
37 In state v. John F.m., 285 Conn. 528 (2008), the Court reversed the Appellate
Court without addressing the Appellate Court’s premise that a conflict between decisional law of the Supreme Court and the Code of Evidence would have to be
resolved in favor of the Supreme Court. see State v. John M., 94 Conn. App. 667,
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August 2008 the Supreme Court decided deJesus.
The much-awaited outcome in deJesus was not presaged
by previous cases decided under the new Code since 2000,
most notably state v. sawyer. Chief Justice Rogers wrote the
opinion of the Court in deJesus, joined by Justices Norcott
and Vertefeuille, concluding, inter alia, that judges of the
Superior Court in adopting the Code had not actually
“intended to divest this court of its long-standing inherent
common-law adjudicative authority over evidentiary law.”38
Separately concurring in the result, Justice Palmer and
Justice Zarella (joined by Justice Sullivan) eschewed the
majority’s reliance on what the Superior Court judges had
intended in fact,39 emphasizing instead the formal reasons
why the Supreme Court’s authority is theoretically irreducible by a vote of the judges of the Superior Court. Justice
Zarella wrote: “I conclude, like Justice Palmer, that the
judges of the Superior Court do not possess authority under
our constitution to divest this court of its inherent authority to
change and develop the law of evidence.”40
Justice Katz filed a fifty-four page dissent in deJesus,41
taking the position that the Code is “a judicial codification of
general rules of prospective application” and that “[t]hese
rules are the functional equivalent of laws.”42 Katz’s opinion
is a “must read” that explains the purpose and legitimacy of
the new Code that she and former Justice Borden consistent672-73 n.5 (2006) (Noting an apparent conflict between an 1827 case, State v.
Roswell, 6 Conn. 446 (1827), and Code § 8-3: “we know of no authority indicating
that a decision of the Connecticut Supreme Court may be overruled by the promulgation of rules of evidence.”).
38 deJesus, 288 Conn. at 452; see also, id. at 455 n. 21.
39 Chief Justice Rogers’s opinion also questioned whether the Code would be
constitutional if its purpose had been to divest the Supreme Court of its “common law
authority,” itself codified in Article Fifth, § 1, of the Constitution of 1818, which
includes the “power to develop and change the law of evidence via case-by-case adjudication. ” id. at 459-60. Chief Justice Rogers declared: “We therefore decline to
construe the code in such a potentially unconstitutional manner, and conclude that the
evidentiary rules articulated therein are subject to change, modification, alteration or
amendment by this court in the exercise of its constitutional and common-law adjudicative authority. To reiterate, we conclude that the code neither is, nor was intended to be, anything more than a concise, authoritative and . . . ‘readily accessible body
of rules to which the legal profession conveniently may refer.’” id. at 460.
40 id. at 490 (Zarella, J., citing p. 485 of Justice Palmer’s concurring opinion).
41 deJesus, 288 Conn. at 494-547.
42 id. at 494.
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ly espoused in sawyer and during their many years of work
on the Code before and after its adoption. The prize for the
reader who journeys to the end of Katz’s forlorn dissent is an
apology likening the Code’s misfortune in deJesus to the end
of a midsummer night’s dream: “Like Shakespeare’s Puck, I
can only apologize to the audience and suggest that it also
pretend that this has all been a bad dream.”43
While all the justices, but Justice Katz, subscribed to the
deJesus holding that the Court’s traditional powers are unaffected by adoption of the Code, their differing rationales leave
the legal foundation of the Code unsettled and the path (or
paths) for future development of evidence law unclear. The
six justices who concurred in the holding varied substantially
in their reasoning. Chief Justice Rogers found that Code
Section 1-2 (a), the provision governing growth and development of evidence law in the future, uses two terms, “interpretation” and “judicial rule-making,” that are ambiguous44 but
concluded that the adoption of the Code by the judges of the
Superior Court was not, as an empirical matter,45 intended to
change the Supreme Court’s ultimate authority over evidence
law. Justice Palmer found that the terms “interpretation” and
“judicial rule-making” as used in Code Section 1-2 (a) are not
ambiguous46 but he and Justice Zarella concluded, as a theoretical matter, the Supreme Court has ultimate authority over
evidentiary law.47 Chief Justice Rogers and Justice Palmer
id. at 547. Footnote 35 on page 547 contains Puck’s last speech from the play.
id. at 444-46 (Rogers, C.J.).
45 Chief Justice Rogers reviewed the “history” behind the Superior Court’s adoption of the Code and concluded that the Code was not intended to “divest this court
of its inherent authority to change and develop the law of evidence through case-bycase common-law adjudication.” deJesus, 288 Conn. at 451 (emphasis in original).
Chief Justice Rogers further noted that Justice Borden had not addressed the divestiture issue when he addressed the Superior Court judges at the meeting where the
Code was adopted: “There was no discussion of the effect, if any, that adoption of the
code would have upon this court's common-law adjudicative authority to change and
develop evidentiary law on a case-by-case basis, an inherent authority that it has
enjoyed since the seventeenth century.” id. (emphasis in original).
46 id. at 480-81 and n.3 (Palmer, J.).
47 id. at 485 (Palmer, J.) (“the ultimate authority to determine the law of evidence has resided in this court since its inception, and no persuasive reason has been
proffered to support the contention that the judges of the Superior Court have the
power to assert that authority for themselves”); id. at 490-91 (Zarella, J.) (“the
judges of the Superior Court do not possess authority under our constitution to
divest this court of its inherent authority to change and develop the law of evidence.
43
44
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each acknowledged that the Court’s common-law authority
over evidence law is less than absolute because the legislature
also makes evidence law.48 Chief Justice Rogers wrote that
the Code’s special provenance and limited purposes make it
different in kind from Superior Court Practice Book rules.49
Justice Palmer declared that the supervisory authority of the
Supreme Court is not subject to the rule-making authority of
the Superior Court so that even if the Code were legally on par
with Superior Court Practice Book rules, neither is ultimately
binding on the Supreme Court.50 Justice Zarella would have
preferred that his colleagues not treat “our laws of evidence as
akin to rules of practice” in part because the case did not
require the Court to confront the “side effect” of such a comparison.51 Chief Justice Rogers noted, and Justice Palmer
agreed, that the Code is also subject to “change, modification,
alteration or amendment by the appellate court in the exer. . . I am puzzled by the majority's failure to declare that the lack of constitutional
authority is clear.”). cf. id. at 459-60 (Rogers, C.J.) (“we question whether the judges
of the Superior Court have the constitutional authority to adopt a code of evidence”
that is binding upon the Supreme Court).
48 id. at 462 n. 31 (Rogers, C.J.) (statutes modifying the common law of evidence “‘have never been challenged as violating the principle of separation of powers.’” (quoting State v. James, 211 Conn. 555, 560 (1989)); id. at 485 n. 7 (Palmer,
J.) (citing State v. James).
49 id. at 460-61 (Rogers, C.J.) (“we conclude that the code neither is, nor was
intended to be, anything more than a concise, authoritative and, as the commentary
to § 1-2 (a) of the code describes it, ‘readily accessible body of rules to which the
legal profession conveniently may refer.’ [new ¶] Our conclusion on this point is
predicated on the unique procedural and factual history of the code and, as such,
should not be construed to extend to the rules of practice codified in the Practice
Book.” (emphasis added)).
50 id. at 483-87 (Palmer, J.) (“I therefore view the rules of practice in the same
way that I view the code, namely, as a set of rules adopted by the judges of the
Superior Court that govern the manner in which cases are to proceed in our trial
courts. Under its common-law adjudicative authority, however, this court is the final
arbiter of any dispute between the parties regarding the interpretation of those rules.
Similarly, this court, by virtue of its inherent authority as the state's highest court,
ultimately retains the power—however infrequently it may choose to invoke it—to
establish the rules that govern the administration of justice in the courts of this
state.” id. at 487).
51 “By treating our laws of evidence as akin to rules of practice, my colleagues
fail to credit these historically significant differences in the origins of each body of
rules, as well as the importance of these differences in determining the judicial body
with ultimate authority. [new ¶] A side effect of this appears to be Justice Palmer's
conclusion that this court has authority to change, modify or enact a rule of practice,
a conclusion that I suggest is premature in light of the language of the 1808 statute
and the fact that the present case does not present a challenge to this court's authority over the rules of practice.” id. at 493.
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cise of its constitutional and common-law adjudicative
authority” if not inconsistent with Supreme Court decisions.52
In any event, many questions raised by adoption of the
Code remain unanswered by a majority of the current
Supreme Court. The issues generated in the various opinions
in deJesus may eventually be resolved judicially. Another
possibility is that the legislature may someday take a more
formal stance on its own role in making evidence law,53
though coordination between the judiciary and the legislature
to avoid a separation of powers conflict seems likelier, given
the political reality that “rigid lines of demarcation cannot be
reconciled with the operational interdependence of the three
branches of government that marks the modern state.”54
More down to earth and of immediate interest is the
impact that deJesus will have on the work of the Code of
Evidence Oversight Committee55 and the adjudicative work
id. at 460 n. 28 (Rogers, C.J.). see also id. at 481 n. 4 (Palmer, J.).
For example, Senate Substitute Bill No. 1479 for the January 2007 legislative
session, favorably reported out of the Committee on the Judiciary on April 13, 2007
and later passed in the Senate, would have amended CONN. GEN. STAT. §51-14(a) to
add “rules of evidence” to the already statutorily authorized rule-making powers of
the courts (“rules and forms regulating pleading, practice and procedure”) and
would have required that “any proposed new rule and any change in any existing
rule” be submitted to the judiciary committee “for approval or disapproval in its
entirety” within ninety days of submission, with approval by default if not acted on
in that time period. Had Senate Bill 1479 passed, it is conceivable that the legislature could disapprove a new decisional rule, once made part of the Code of
Evidence, creating an impasse in which the decisional rule would be “good law” in
the eyes of the Supreme Court but “bad law” in the eyes of the Judiciary Committee
(thus not part of the Code unless the Code were to take a cue from certain baseball
records by using asterisks to indicate debatable legitimacy).
54 Ellen A. Peters, Getting away From the Federal paradigm: separation of
powers in state courts, 81 MINN. L. REV. 1543, 1563-64 (1997) (emphasis added).
Describing “state trial courts in action,” then Senior Justice Peters wrote:
“Operationally, at least in Connecticut, separation of powers is largely irrelevant to
much of the work of trial court judges and administrators. The governing principle
is not separation but networking.” id. at 1560-61. Justice Peters explained by way
of example that state judicial administrators track pending bills in the legislature and
use staff to “influence the language, content, and effect of pending legislation to
minimize the risk of future points of conflict[]” and that “advance notice of pending
legislation affords the judiciary the opportunity to exercise its rule-making authority and amend judicial rules to conform to forthcoming legislative policy initiatives.”
id. at 1561.
55 id. at 452 (Rogers, C.J.) (noting that the mission of the Code of Evidence
Oversight Committee is not defined: “It is unclear, for example, whether the judges
intended for the committee to recommend substantive revisions to the code, such as
overruling well established common-law evidentiary rules developed by this court,
52
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of lower courts in cases in which litigants challenge provisions in the Code.56 For the time being it appears that the
Oversight Committee could consider and make recommendations on proposed changes to the Code and that the judges of
the Superior Court could vote on proposed changes, but that
only the trial courts are obliged to follow the Code. Even the
latter proposition should be hedged, since failure to employ
the Code may not matter on appeal as long as trial courts have
used binding decisional law accurately and as long as the
reviewing court does not consider use of the Code critical to
providing an adequate record for appellate review.57 Trial
practitioners will cautiously follow the Code while bearing in
mind that the duty to make an adequate record for appeal may
occasionally require challenging not just applications of the
Code but the Code itself so that courts of review might be
persuaded to modify or change the Code in an exercise of
their preserved common-law authority over rules of evidence.
or whether the judges intended for the recommendations of the committee to be limited in scope, such as filling in gaps in evidentiary law and updating the code to
reflect changes in evidentiary law developed by this court through the traditional
common-law method of case-by-case adjudication.”).
56 The philosophic and pragmatic implications of deJesus will take time to be
fully explored by actual practitioners and by seasoned commentators on Connecticut
law and practice. Reflecting on the case’s broader implications for civil and criminal practice alike, Horton and Bartschi have already weighed in with eight provocative questions and eight provisional answers suggested by the various opinions of the
various justices in deJesus. Wesley W. Horton and Kenneth J. Bartschi, 2008
connecticut appellate Review, 83 CONN. BAR J. 1, 5-9 (2009). No doubt Professor
Tait and Judge Prescott will address the implications of deJesus in their next pocket part, amending, or altogether revamping, their pre-deJesus description of the
manner in which rules of evidence may be changed in the Code era: “The future
development of the law of evidence will be accomplished through the rule-making
process and common-law development . . . when amending the Code, the judges
should adopt procedures analogous to those utilized when amending the Practice
Book.” COLIN C. TAIT AND ELIOT D. PRESCOTT, TAIT’S HANDBOOK OF CONNECTICUT
EVIDENCE (4th ed. 2008), §1.6.3, p. 25.
57 see State v. Calabrese, 279 Conn. 393, 407-09 n. 18 (2006) (rejected state’s
claim that citation to Code always necessary to alert trial court and preserve evidentiary claim for appellate review). When I discussed calabrese in developments
in criminal law: 2006, 81 CONN. B.J. 161, 175 (2007), I presented it as an atypical
instance in which the reviewing court showed a willingness to look functionally at
the record and to forgive a formal deficiency, making the lesson of the case to be
that failure to cite the Code at trial could bar appellate review in other instances.
After deJesus, the role of the Code in providing an adequate record for review under
Practice Book §§ 60-5 and 61-10 is less clear than before.
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III. A N EW L EGITIMACY F OR P ROPENSITY E VIDENCE
It is easy to be distracted by the abstract issues raised in
deJesus and to forget that the case is also of concrete importance. Having decided that it retained power to revisit established rules of evidence, the Supreme Court did so, ultimately reaching a momentous decision to recognize a new
“propensity” paradigm that supports the Court’s continued
commitment to a liberal rule of admissibility of uncharged
misconduct in prosecutions for sex offenses.
Finding that the Code of Evidence incorporated the common-law liberal rule for admissibility of uncharged misconduct evidence in prosecutions for sexual offenses,58 the
deJesus Court entertained the defendant’s argument that “the
liberal standard of admission should be overruled because it
is inadequate to demonstrate the existence of a genuine plan
in the defendant’s mind, and crimes of a sexual nature are neither more secretive, aberrant nor pathological than crimes of
a nonsexual nature.”59 The Court agreed with the defendant
that the liberal rule has been used to discount need for a genuine plan when applied to the common plan or scheme exception. But the Court rejected the defendant’s characterization
of sexual crimes as non-secretive, non-aberrant and nonpathological:
We agree with the defendant that the adoption of the code did
not divest this court of its inherent common-law adjudicative
authority to develop and change the rules of evidence on a
case-by-case basis. We further agree with the defendant that…
evidence of uncharged misconduct admitted under the liberal
standard ordinarily does not reflect the existence of a genuine
plan in the defendant's mind. nonetheless, given the highly
secretive, aberrant and frequently compulsive nature of sex
crimes, we conclude that the admission of uncharged misconduct evidence under the liberal standard is warranted and,
therefore, we adopt this standard as a limited exception to § 45 (a) of the code, which prohibits the admission of "[e]vidence
of other crimes, wrongs or acts of a person… to prove the bad
character or criminal tendencies of that person."60
58
59
60
id. at 443-44.
id. at 439.
deJesus, 288 Conn. at 439-40, 463-74.
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The Court forthrightly acknowledged that the challenged
liberal standard is not actually rooted in the common scheme
or plan exception to the rule against use of character evidence: “Because the liberal standard does not focus on the
existence of an overall scheme or plan in the defendant’s
mind that encompasses the commission of the charged and
uncharged crimes, but instead focuses on the similarity of the
charged and uncharged crimes, we now acknowledge that
evidence admitted under this standard ordinarily does not fall
within the ‘true’ common scheme or plan exception.”61
Rather than faulting the rule for lacking such underpinnings,
the Court legitimated it on an alternative basis. The Court for
the first time acknowledged that the liberal rule is actually a
propensity rule “rooted in this state’s unique jurisprudence”62
governing prosecution of sex crimes:
public policy considerations militate in favor of recognizing a
limited exception to the prohibition on the admission of
uncharged misconduct evidence in sex crime cases to prove
that the defendant had a propensity to engage in aberrant and
compulsive criminal sexual behavior. We therefore join the
federal courts, as well as a multitude of our sister states, that
recognize a similar propensity exception in sexual cases.63
The new propensity rule permits use of uncharged sexual
misconduct evidence “only if it is relevant to prove that the
defendant had a propensity or a tendency to engage in the type
of aberrant and compulsive criminal sexual behavior with
which he or she is charged.”64 Admissibility of uncharged
misconduct evidence further depends upon evaluation of three
factors: (1) the uncharged conduct is “‘not too remote in
time’”; (2) the uncharged misconduct is similar to the charged
conduct; and (3) the uncharged conduct was “‘committed
id. at 468.
id. at 473 n.35 (“The scope and contours of the propensity exception to the
rule prohibiting the admission of uncharged misconduct that we adopt in this opinion therefore are rooted in this state's unique jurisprudence concerning the admission of uncharged misconduct evidence in sex crime cases, and must be construed
accordingly. Consequently, we do not anticipate that our decision today will open the
floodgates to the admission of uncharged misconduct evidence that previously was
inadmissible under the common scheme or plan exception.”).
63 id. at 470 (emphasis in original).
64 id. at 473.
61
62
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upon persons similar to the prosecuting witness.’”65
Applying the new paradigm to the deJesus case itself, the
Court noted that the uncharged misconduct evidence had not
been admissible for the purpose for which it was offered
(common scheme or plan), but that it was admissible as
propensity evidence,66 and that the defendant could not show
harm because his only claim of harm was that the jury could
have misused the evidence “to infer that the defendant had a
propensity or a tendency to commit the crime of sexual
assault[,]” which is “the precise purpose” for which it can be
used under the new propensity paradigm.67 The Court also
held that trial courts hereafter must give “an appropriate cautionary instruction to the jury” when admitting propensity
evidence in sex cases.68
The new exception has not (yet) been incorporated expressly into the Code of Evidence, though it has already been
applied on appeal by the Supreme Court in other cases.69 In a
id. at 473 (quoting State v. McKenzie-Adams, 281 Conn. 486, 522 (2007)).
id. at 474-75 (“although evidence of the defendant's uncharged misconduct
with N was inadmissible to prove the existence of a ‘true’ common scheme or plan
in the defendant's mind, it was admissible to prove that the defendant had a propensity or a tendency to sexually assault young women of limited mental ability with
whom he worked and over whom he had supervisory authority.”).
67 id. at 476.
68 id. at 474 n. 36. The “precise content” of the required instruction was not prescribed, but an example was provided, id. at n.36, and the Criminal Jury Instructions
Committee has since drafted such an instruction: “In a criminal case in which the
defendant is charged with a crime exhibiting aberrant and compulsive criminal sexual behavior, evidence of the defendant's commission of another offense or offenses is
admissible and may be considered for its bearing on any matter to which it is relevant. However, evidence of a prior offense on its own is not sufficient to prove the
defendant guilty of the crimes charged in the information. . . .” (Emphasis added.)
connecticut selected Jury instructions criminal §2.6-13 (new Nov. 1, 2008). Until
now trial courts instructed the jury in all cases that prior misconduct evidence was not
admitted to show propensity or tendency. In ordinary cases courts will still instruct
on that boundary: “The state has offered evidence of other acts of misconduct of the
defendant. this is not being admitted to prove the bad character of the defendant or
the defendant's tendency to commit criminal acts. Such evidence is being admitted
solely to show or establish that [purpose specified]. . . .” (Emphasis added.)
connecticut selected Jury instructions criminal §2.6-5. See complete instructions at
the judicial web-site: http://www.jud.ct.gov/JI/criminal/default.htm see State v.
Snelgrove, 288 Conn. 742, 757, 764 n.10 (2008) (ordinary standard charge used;
absence of propensity charge harmless).
69 If the new propensity rule is not ever codified, it creates a potentially confusing duality in evidentiary doctrine, requiring lower courts to rely on the Code and to
check for decisional law inconsistent with the Code before deciding what evidentiary rule controls. To the extent that there is a conflict between the Code and the
65
66
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murder case, state v. snelgrove,70 the defendant argued that
the trial court had admitted evidence of the defendant’s commission of two previous murders under a host of inapplicable
exceptions to the rule against character evidence and that “it
was probable that the jury would conclude that he was guilty
because he had a propensity to kill women for sexual reasons.”71 Justice Vertefeuille for the Court concluded that the
deJesus propensity paradigm may also be used in prosecutions for non-sex crimes as long as the prosecuted crime and
the uncharged misconduct were both “driven by an aberrant
sexual compulsion.”72 The Court concluded that the propensity exception was satisfied in snelgrove as the evidence was
“not too remote in time,” and involved similar sexual compulsion and similar victims.73 The Court noted that the prior misconduct evidence was used “primarily ‘to establish a necessary motive or explanation for an otherwise inexplicably hordecisional law, at least deJesus settles that the decisional law prevails, especially if
decided after the Code was adopted. Checking both rules and case law, of course,
has long been the bread and butter of trial practice, so it would be mistaken to take
deJesus to have changed the pragmatics of trial evidentiary practice. Careful practitioners will cite the Code in making a trial record because the Supreme Court said
nothing about its willingness to review evidentiary claims on appeal that ignore the
Code. but see State v. Calabrese, 279 Conn. 393, 407-08 n. 18, 408-09 (2006)
(rejected state’s claim that citation to Code always necessary to alert trial court and
preserve evidentiary claim for appellate review) (discussed in Timothy H. Everett,
developments in criminal law: 2006, 81 CONN. B. J. 161, 175 (2007)).
70 288 Conn. 742 (2008).
71 id. at 757-58.
72 id. at 760. The Court explained: “[T]he exception to the rule barring propensity evidence applies whenever the evidence establishes that both the prior misconduct and the offense with which the defendant is charged were driven by an aberrant
sexual compulsion, regardless of whether the prior misconduct or the conduct at
issue resulted in sexual offense charges. Although we stated in deJesus that ‘[t]he
scope and contours of the propensity exception to the rule prohibiting the admission
of uncharged misconduct . . . [is] rooted in this state's unique jurisprudence concerning the admission of uncharged misconduct evidence in sex crime cases, and
must be construed accordingly’ (emphasis added) [deJesus, 288 Conn. at] 473 n.35
. . .; nothing in that case suggests that it is the specific nature of the charges brought
against a defendant that renders the evidence especially probative in such cases.
Rather, deJesus makes it clear that it is the aberrant and compulsive nature of the
defendant's prior misconduct that permits a fact finder to infer that, because the
defendant previously had engaged in such conduct, it is likely that he did so again.
As a matter of pure logic, this rationale applies whenever the state is using the evidence of prior sexual proclivities ‘to establish a necessary motive or explanation for
an otherwise inexplicably horrible crime’; (internal quotation marks omitted) id., at
469 . . .; regardless of whether the crime itself was a sexual offense.” snelgrove, 288
Conn. at 760-61.
73 id. at 761-64.
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rible crime.’”74
Applying deJesus and snelgrove, the Court in state v.
Johnson75 found no error in the consolidation for trial of
three murder charges where the trial court had concluded that
“evidence of each murder was cross-admissible as to the
other two murders to prove both intent and a common plan or
scheme.”76 The Johnson Court noted that it was not necessary to decide whether the trial court’s rationale for determining cross-admissibility was sustainable because “the evidence was cross admissible to demonstrate propensity” under
deJesus and snelgrove.77
IV. K IDNAPPING C LARIFIED : s tate v. s alamon
In state v. salamon,78 in reviewing the defendant’s challenge to the jury instruction on the intent element of kidnapping in the second degree, the Supreme Court accepted the
defendant’s invitation to “revisit and overrule our interpretation of this state's kidnapping statutes, most recently articulated by this court in state v. luurtsema,79 under which a person who restrains another person with the intent to prevent
that person's liberation may be convicted of kidnapping even
though the restraint involved in the kidnapping is merely incidental to the commission of another offense perpetrated
against the victim by the accused.”80 Justice Palmer wrote
the majority opinion, joined by Justices Borden, Norcott, and
Katz. Justice Borden added a short concurrence.81 Justice
Zarella wrote separately, voicing strong disagreement with
id. at 766 (quoting deJesus, 288 Conn. at 469).
289 Conn. 437 (2008).
76 id. at 439, 445, 448-49.
77 id. at 439 n.3, 450, 455-57.
78 287 Conn. 509 (2008).
79 262 Conn. 179 (2002).
80 id. at 513.
81 id. at 574-76. Justice Borden writes: “I am persuaded by the majority opinion's insight that, in establishing our prior kidnapping jurisprudence, this court never
fully analyzed the kidnapping statute, its historical background, and the anomalous
results that our jurisprudence was producing. In light of that analysis, which the
majority has now produced, I am convinced that, in enacting the kidnapping statutes,
the legislature did not intend that almost every assault, sexual assault or robbery
automatically would be elevated to a kidnapping, with its attendant heavy penalties
and opportunities for prosecutorial overcharging, simply by virtue of a minor
restraint of liberty that was inherent in the underlying crime. Such a result now
74
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the majority’s holding but concurring in the remedy of a new
trial on kidnapping because the trial court failed to instruct
the jury adequately on the specific intent element of kidnapping.82 Justices Vertefeuille and Sullivan joined in Justice
Zarella’s strongly stated opinion.
The majority opinion in salamon begins with an interesting discussion and rejection of the state’s argument based on
“two separate but related principles” that it should not revisit established precedent: the principle of stare decisis and the
principle of statutory interpretation that militates against revisiting a judicial construction of a statute after the “legislature reasonably may be deemed to have acquiesced in that
construction.”83 The majority first analyzed the plain text of
the kidnapping and unlawful restraint statutes, as resort extratextual would be inconsistent with General Statutes Section
2-1z if a statutory text carries a plain, unambiguous meaning:
“The crime of kidnapping and other offenses primarily
involving restrictions of another person's liberty, including
unlawful restraint and custodial interference, are set forth in
part VII of the Connecticut Penal Code, General Statutes
Section 53a-91 et seq. Under those provisions, the hallmark
of a kidnapping is an abduction, whereas the hallmark of an
unlawful restraint, a less serious crime, is a restraint.”84 The
majority notes that since 1977 it had rejected many times the
strikes me . . . as anomalous and not consistent with the likely legislative intent. It is
time that we join the great majority of courts that have so concluded, as the majority has aptly demonstrated.” id. at 576.
82 id. at 576-608. Justice Zarella declared: “i disagree with the new interpretation of our kidnapping statutes that the majority announces in part I of its opinion
and with its conclusion in part III that unlawful restraint is a specific intent crime.
my disagreement with the majority is premised on what i believe to be serious flaws
in its construction of the plain language of the statutory scheme, its treatment of the
principle of stare decisis, and its usurpation of the roles of both the legislature and
the office of the state's attorney set forth in our state constitution. I agree, however
. . . that the defendant . . . is entitled to a new trial on the charge of kidnapping in
the second degree, albeit for a different reason.” id. at 576-77 (Zarella, J.) (emphasis added).
83 id. at 519. The majority concluded that stare decisis should not cause it to
hesitate to overrule prior holdings “once we are convinced that they were incorrect
and unjust.” id. at 521. And the majority set forth six nuanced reasons for its conclusion that the doctrine of legislative acquiescence did not bar review of the defendant’s claim. id. at 521-28.
84 id. at 530.
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“claim that the crime of kidnapping was not intended to apply
to a restraint that was merely incidental to the commission of
another crime.”85 The majority added that the developed law
is that proof of kidnapping “does not require proof that the
victim was confined for any minimum period of time or
moved any minimum distance[,]” that under double jeopardy
principles “it is of no moment that the confinement or movement that provides the basis of a kidnapping conviction is
merely incidental to the commission of another crime against
the victim[,]” and that, “[a]ccordingly, the proper inquiry for
a jury evaluating a kidnapping charge is not whether the confinement or movement of the victim was minimal or incidental to another offense against the victim but, rather, whether
it was accomplished with the requisite intent, that is, to prevent the victim’s liberation.”86 The majority’s “close examination” of the statutory text revealed “an ambiguity” in the
intent required for kidnapping as opposed to unlawful
restraint.87
Finding that “the point at which an intended interference
with liberty crosses the line to become an intended prevention of liberation is not entirely clear”88 in the statutes and as
previously construed judicially, the majority sought guidance
extrinsically, i.e., from “the history and circumstances surrounding the enactment of the kidnapping statutes, the policies that those statutes were designed to implement and their
relationship to common-law kidnapping principles.”89 After
an extensive analysis of those sources, the majority declared:
Upon examination of the common law of kidnapping, the history and circumstances surrounding the promulgation of our
id. at 531 (citing nine cases).
id. at 531-32.
87 id. at 533-34 (“in accordance with the statutory definitions of the terms
‘abduct’ and ‘restrain,’ our decisions have established that a defendant may be convicted of kidnapping upon proof that he restrained a victim when that restraint is
accompanied by the requisite intent. Those previous decisions, however, have not
explored the parameters of that intent, in particular, how the ‘intent to prevent [a victim's] liberation’; General Statutes § 53a-91 (2); that is, the intent necessary to establish an abduction, differs from the intent "to interfere substantially with [a victim's]
liberty"; General Statutes § 53a-91 (1); that is, the intent necessary to establish a
restraint.”).
88 id. at 534.
89 id. at 535.
85
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current kidnapping statutes and the policy objectives animating those statutes, we now conclude the following: Our legislature, in replacing a single, broadly worded kidnapping provision with a gradated scheme that distinguishes kidnappings
from unlawful restraints by the presence of an intent to prevent a victim's liberation, intended to exclude from the scope
of the more serious crime of kidnapping and its accompanying severe penalties those confinements or movements of a
victim that are merely incidental to and necessary for the
commission of another crime against that victim. Stated otherwise, to commit a kidnapping in conjunction with another
crime, a defendant must intend to prevent the victim's liberation for a longer period of time or to a greater degree than
that which is necessary to commit the other crime.90
The majority further recognized that its previous failure to
recognize the different intent needed for kidnapping as
opposed to unlawful restraint “largely has eliminated the distinction between restraints and abductions” and had “afforded prosecutors virtually unbridled discretion to charge the
same conduct either as a kidnapping or as an unlawful
restraint despite the significant differences in the penalties
that attach to those offenses.”91
Finally, the salamon majority decided that the defendant
was entitled to a new trial at which the jury would be instructed to differentiate between merely incident restraint during the
defendant’s commission of another crime and the intent necessary to prove kidnapping.92 Relying on salamon, the Supreme
Court reversed kidnapping convictions and has now ordered
new trials in state v. sanseverino93 and state v. deJesus.94
id. at 542 (emphasis added).
id. at 543-44.
92 id. at 549-50.
93 287 Conn. 608, 618-26 (2008) (in Appellate Court defendant unsuccessfully
claimed kidnapping was vague-as-applied to his conduct; Supreme Court avoided
constitutional issue, found error under salamon decision, issued same day; also initially found insufficient evidence to justify retrial), upon rehearing, 291 Conn. 574
(2009) (new trial ordered as remedy instead of acquittal).
94 deJesus, 288 Conn. at 428-39. Interestingly, the deJesus majority agreed
with Justice Zarella’s dissent in sanseverino in which he disagreed with the remedy
of an acquittal: “we are persuaded that our conclusion that there should have been
a judgment of acquittal in sanseverino was incorrect, and that the proper remedy in
that case should have been a new trial. Accordingly, our conclusion in sanseverino
hereby is overruled.” deJesus, 288 Conn. at 437.
90
91
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V. S UPPRESSION O F E VIDENCE
Appellate courts decided many suppression issues in
2008, most involving search and seizure and confessions
claims controlled by the federal constitution. In state v.
betts,95 Justice Norcott for the Court rejected the defendant’s
claim that his fiancée acted as an agent of the police when,
at the behest of the police, she retrieved from the bedroom
that she shared with the defendant an incriminating letter
from the defendant to her daughter – the victim. The opinion usefully reviews case law that has dealt with the extent to
which citizen/police involvement may take place without creating an agency relationship.96
In state v. kalphat,97 the Supreme Court upheld the trial
court’s denial of the defendant’s motion to suppress because
the defendant failed to establish standing to challenge a
police search of one of several boxes, sent by commercial
carrier to a person with a name other than the defendant’s,
that contained more than a kilogram of marijuana. The
defendant picked up the boxes after police obtained a positive
canine alert for illegal drugs in one of the boxes.98 Testifying
at the suppression hearing, the defendant did not claim to be
the package’s addressee; thus the Supreme Court concluded
that he had not established that he had a reasonable expectation of privacy in the boxes at the time that they were
searched – which was before he took possession of them.99
The Court also concluded that the record was deficient to
show that the addressee was his alias, which might have
established standing.100
In state v. Foreman,101 the Supreme Court, in an opinion
written by Justice Norcott, rejected the defendant’s claim that
a DNA sample via an oral swab obtained by the police during
stationhouse questioning should be suppressed because he
had been arrested without probable cause, because his
95
96
97
98
99
100
101
286 Conn. 88 (2008).
id. at 96-100.
285 Conn. 367 (2008).
id. at 370-72.
id. at 375-77.
id. at 377-81.
288 Conn. 684 (2008).
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miranda waiver was not valid, his invocation of his right to
counsel was not honored, because the police “intentionally
thwarted” contact with his attorney in violation of state v.
stoddard,102 and because the defendant did not voluntarily
consent to give a DNA sample. The Court held that the
record was inadequate to review the illegal arrest claim
because it was not argued in the trial court and thus the trial
court neither made findings nor drew conclusions concerning
his arrest status and the presence or absence of probable
cause.103 The Court found that the defendant had waived his
miranda rights after receiving proper warnings, though at a
time when he was in the police station voluntarily, not yet in
“custody,” and that the trial court correctly found that he had
not requested counsel.104 Closely reviewing the evidence
concerning when private counsel had made an effort to visit
and consult with the defendant on the evening of his arrest,
the Court concluded that the trial court was correct in finding that there was no stoddard violation because the attorney’s efforts came after the police obtained consent to take a
DNA sample.105 Finally, the Court rejected the defendant’s
claim that his signed consent to the police taking a DNA sample was invalid because the police did not inform him of their
purpose in obtaining it.106
In state v. Grant,107 the Supreme Court, in an opinion
written by Chief Justice Rogers, rejected the defendant’s
claim that a warrant authorizing the taking of a sample of his
blood is “subject to a heightened evidentiary standard”
beyond the probable cause standard108 and rejected his claim
102
206 Conn. 157 (1988).
Foreman, 288 Conn. at 692-94.
104 id. at 699-700.
105 id. at 701-06.
106 id. at 708-09. There is no indication in Foreman that the defendant asked
the Court to consider state and federal law relating to genetic research or human subjects protection that might provide a basis for recognizing DNA samples as sui
generis search objects, given the range of information that DNA testing may disclose, thus providing a possible rationale for requiring particularized consent to the
warrantless taking and use of DNA samples.
107 286 Conn. 499, cert. denied, 129 S.Ct. 721, 127 L.Ed.2d 200 (2008).
108 id. at 513-14. In an interesting footnote, the Court disagrees with Professor
LaFave’s interpretation of the Court’s decision in state v. acquin, 177 Conn. 352
(1979). State v. Grant, 286 Conn. at 514 n. 9 (discussing acquin and 2 W. LAFAVE,
SEARCH AND SEIZURE (4th Ed. 2004) § 4.1(e), p. 459 & 459 n. 100).
103
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that the affidavit supporting the warrant failed to establish
probable cause to infer that the defendant’s blood had been
found at the crime scene, a murder in a New Haven parking
garage in 1973.109 The Court also rejected the defendant’s
claim that the trial court should have ordered a Franks hearing on whether the police affidavit in support of the search
warrant had materially misled the judge who issued the warrant.110 The Grant Court also rejected the defendant’s argument that statements the defendant offered to police after his
arrest were suppressible as the product of “interrogation”
because an officer had upon his earlier arrest told him that
blood evidence, not just fingerprint evidence, connected him
to the murder scene. The test for “interrogation” is set forth
in Rhode island v. innis.111 The Court held that the innis test
does not set out a “per se rule” that post-arrest police confrontation of a suspect with incriminating evidence always
constitutes interrogation: “Rather, whether such conduct constituted an interrogation depends on whether it was a normal
incident of arrest and custody or, instead, was intended to
elicit an incriminating response.”112
In state v. Robinson,113 Judge Borden for a split Appellate
Court rejected the defendant’s claim that the police lacked
probable cause to arrest him for criminal trespass and that evidence discovered during a search incident to that arrest should
have been suppressed. The Court rejected the defendant’s
argument that an element of third degree criminal trespass, that
premises be “fenced or otherwise enclosed in a manner
designed to exclude intruders,” cannot be established unless
there is a gate instead of an opening for ingress and egress, so
as to signal that only those with legitimate purposes may be on
the premises114 Judge Bishop dissented on that issue, but the
Supreme Court has since affirmed in a per curiam opinion.115
id. at 515-18.
id. at 518-22 (applying Franks v. Delaware, 438 U.S.154 (1978)).
111 446 U.S. 291 (1980).
112 Grant, 286 Conn. at 526.
113 105 Conn. App. 179, aff ’d, 290 Conn. 381 (2009) (per curiam).
114 id. at 190-96. The dissent placed a more restrictive gloss on the word
“enclosed” in the statute. compare id. at 195-96 (Borden, J.) with id. at 205-07
(Bishop, J., dissenting).
115 State v. Robinson, 290 Conn. 381 (2009) (per curiam).
109
110
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The case also includes a useful explication of the standard for
a warrantless strip search pursuant to a misdemeanor arrest
and the distinction between a strip search and a body cavity
search.116
In state v. Fausel,117 the Appellate Court sustained the
defendant’s claim that police violated the Fourth Amendment
when they entered and searched his home in the process of
pursuing and seizing the defendant’s friend for driving while
under suspension and reckless driving. Judge Bishop for the
Court first noted the difference between the emergency doctrine and the exigent circumstances doctrine, then agreed
with the defendant that the facts did not support either exception to the warrant requirement and that the trial court should
have granted the defendant’s motion to suppress evidence
found in the defendant’s house.118 The Supreme Court has
granted the state’s petition to appeal the decision.119
The Supreme Court has granted the state’s petitions to
appeal in several other cases where the defendant prevailed in
the Appellate Court in 2008. In state v. clark,120 Judge
Bishop for a split Appellate Court rejected the state’s claim
that the trial court erred in finding that the police lacked reasonable suspicion to stop the defendant in a car several hours
after receiving a telephone tip from a confidential informant
saying that the defendant was selling drugs in the Hill section
of New Haven and that he was driving a tan Chevrolet Cobalt
with Pennsylvania license plates.121 Judge Beach dissented,
calling it a “close case,” but arguing that the tip provided reasonable suspicion of criminal activity based on the informant’s reliability in the past, because the tip “predicted, if
somewhat generally, the location of the car and, with particuRobinson, 105 Conn. App. at 196-200.
109 Conn. App. 820 (2008), cert. granted, 289 Conn. 940 (2008).
118 id. at 826-31.
119 The certified issue in the Supreme Court is: "Did the Appellate Court properly reverse the trial court's suppression ruling that the police were justified in entering the defendant's house without a warrant?" State v. Fausel, 289 Conn. 940 (2008).
120 107 Conn. App. 819 (2008), cert. granted, 288 Conn. 916 (2008). The certified issue in the Supreme Court is: "Did the Appellate Court properly affirm the
trial court's ruling that the evidence seized from the defendant's vehicle and person
should be suppressed as the fruit of an illegal seizure?"
121 id. at 821-22, 827-29.
116
117
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larity, the association of the defendant with the car,” even
though there was no indication of his basis of knowledge for
the tip.122 In state v. mitchell,123 Judge Bishop for the Court
found that an officer’s questioning of a suspect just taken into
custody, to find out if he knew why he had been apprehended, constituted custodial interrogation, that the defendant’s
responses should have been suppressed because he had not
been given miranda warnings, and that the error was not
harmless beyond a reasonable doubt.124
In an important decision, in re kevin k.,125 involving
statutory protections accorded children who undergo police
questioning, Judge DiPentima for the Appellate Court, over
Judge Lavine’s dissent, held that a thirteen-year-old’s written
statement obtained by a Vernon police officer in the presence
of the juvenile’s mother and signed by her and her son, was
inadmissible at his delinquency trial because the officer’s
failure to give the warnings mandated by statute undermined
the voluntariness of the decision by the child and parent to
give a statement – despite the fact that the officer had properly given the required warnings to mother and son two days
earlier before taking a first statement. General Statutes
Section 46b-137(a) states that “any admission, confession or
statement” by a child to the police “shall be inadmissible” in
any hearing on the child’s alleged delinquency unless it was
taken in the presence of a parent or parents or guardian “after
the parent or parents or guardian and child have been advised
(1) of the child’s right to retain counsel, or if unable to afford
counsel, to have counsel appointed on the child’s behalf, (2)
of the child’s right to refuse to make any statements and (3)
that any statements he makes may be introduced into evidence against him.”126 Judge DiPentima demonstrated the
id. at 831-32.
108 Conn. App. 388, cert. granted, 289 Conn. 904 (2008). The certified
issue in the Supreme Court is: “"Did the Appellate Court properly conclude that the
defendant's statement was admitted in violation of his rights under miranda v.
arizona, 384 U.S. 436 [ ] (1966), and if so, was this harmful error requiring a new
trial?"
124 id. at 394, 397-402.
125 109 Conn. App. 206, cert. granted, 289 Conn. 930 (2008). The certified
issue in the Supreme Court is: “Did the Appellate Court properly construe General
Statutes § 46b-137(a) to decide that before giving a second statement a re-advisement of rights was required?"
126 id. at 211 (court quotes § 46b-137(a) and supplies emphasis).
122
123
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developments in connecticut cRiminal law: 2008
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ambiguity of the statute particularly with respect to the critical word “after,” employing some nifty language from an
1846 Supreme Court case, sands v. lyon,127 to help make her
point.128 Having established ambiguity, DiPentima consulted
extra-textual sources and concluded that “the purpose of the
statute is to help the child and his parent or guardian decide
whether to make a voluntary admission or to remain
silent.”129 Ultimately Judge DiPentima concluded that the
circumstances in the case required reversal of the judgment
because “we do not find support in the facts set out in the
court's memorandum of decision for the conclusion that the
statement was admissible because we cannot conclude under
the totality of these circumstances that the respondent and his
parent made a valid decision to make a voluntary admission
that was not the product of coercion, suggestion, ignorance of
rights or adolescent fantasy, fright or despair.”130
Dissenting, Judge Lavine agreed that the statute was ambiguous, not because “after” has more than one “reasonable interpretation,” but rather because “the statute does not address
the length of time that permissibly may pass between the time
the juvenile is advised of his rights and signs a waiver and the
time a child gives a statement that is admissible.”131 Finding
the legislative history was deficient to show whether readvisement was statutorily required under the facts of the case,
Judge Lavine drew an analogy to doctrine concerning constitutional warnings, e.g., miranda, which rejects “a per se rule
as to when a suspect must be readvised of his rights after the
127
18 Conn. 18, 27 (1846).
“We note parenthetically that our Supreme Court has acknowledged, in a different situation, the difficulty with this word: ‘The word “after” . . . like “from,”
“succeeding,” “subsequent,” and similar words, where it is not expressly declared to
be exclusive or inclusive, is susceptible of different significations, and is used in different senses, and with an exclusive or inclusive meaning, according to the subject
to which it is applied; and, as it would deprive it of some of its proper significations
to affix one invariable meaning to it, in all cases, it would, of course, in many of
them, pervert it from the sense of the writer or speaker. Its true meaning, therefore,
in any particular case, must be collected from its context and subject matter, which
are only means by which the intention is ascertained . . . .’ sands v. lyon, 18 conn.
18, 27 (1846).” In re Kevin K., 109 Conn. App. at 212-13.
129 id. at 218.
130 id. at 223.
131 id. at 228-29.
128
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passage of time[,]”132 to support his conclusion that “the
purpose of the statute was met when the respondent and his
mother were advised and signed waiver or consent forms
prior to the respondent's giving a statement to the investigating police officer on October 11, 2005.”133
VI. WAIVER A ND P ROTECTION O F C ONSTITUTIONAL R IGHTS
In several cases defendants obtained new trials because
the trial record did not establish waiver of fundamental trial
rights that call for a knowing, intelligent and voluntary waiver by the defendant personally. In state v. Gore,134 the
Supreme Court affirmed the Appellate Court’s order of a new
trial135 where trial counsel informed the trial court of the
defendant’s decision to change his election from a jury to a
bench trial, but the defendant was not personally canvassed
on his change of election and did not otherwise indicate
agreement with his counsel’s announcement regarding his
changed election. Because the record failed to satisfy the
Zerbst136 standard for waiver and because waiver of the right
to a jury trial may not be presumed from a silent record,137
the Court in Gore held that the Appellate Court had properly
reviewed the constitutional issue under state v. Golding138
and had properly reversed the defendant’s bench trial conviction.139 Noting that the United States Supreme Court
“arguably has left open the question of whether a defendant’s
waiver of the fundamental right to a jury trial must be
expressed explicitly on the record or whether it may be
implied through silence[,]” the Gore Court nonetheless cited
the “uniquely personal” nature of the right to a jury trial in
reaching its conclusion: “A trial court . . . may not assume
that counsel is invoking the wishes of the defendant when he
or she purports to waive a jury trial on the defendant’s
132
133
134
135
136
137
138
139
id. at 231 (citation and quotation marks omitted).
id. at 223-24.
288 Conn. 770 (2008).
96 Conn. App. 758 (2006).
Johnson v. Zerbst, 304 U.S. 458, 464 (1938).
Gore, 288 Conn. at 777-78.
213 Conn. 233 (1989).
Gore, 288 Conn. at 789-90.
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behalf.”140 Further noting that “the constitution does not
mandate the particular form” that a defendant’s personal
waiver of the right to a jury trial must take, the Gore Court
announced: “we hereby exercise our supervisory authority to
require prospectively that, in the absence of a written waiver,
the trial court must canvass the defendant briefly to ensure
that his or her personal waiver of a jury trial is made knowingly, intelligently and voluntarily.”141
Following Gore’s
constitutional holding, in state v. mauro,142 the Appellate
Court used Golding review to reverse and order a new trial
where defense counsel had repeatedly—and erroneously—
assured the trial court that his client had previously been canvassed and had already waived his right to a jury trial.143
The Supreme Court reversed and ordered a new trial in
state v. t.R.d.,144 where the trial court’s canvas of the defendant was inadequate to establish a knowing, intelligent and
voluntary waiver of his Sixth Amendment right to the assistance of counsel at the trial which resulted in his conviction
of failing to register as a sex offender in violation of General
Statutes Sections 54-251 and 54-257.145 Unlike the jury
cases previously discussed, this was a case where the issue
id. at 783.
id. at 786-87 (emphasis added).
142 111 Conn. App. 368 (2008).
143 Emphasizing that the right to a jury trial may be waived only by the defendant personally, the mauro Court declared: “this remains true no matter how many
attempts defense counsel may make to waive the right or whether counsel makes
mistaken representations to the court that a canvass has been made by another judge
and that the defendant himself has made a valid waiver.” id. at 374.
144 286 Conn. 191 (2008) (en banc).
145 Sex offender registration requirements and exposure to criminal sanctions
for their violation are sure to generate more appellate cases in the future. The major
revamping of the registration law was accomplished in 1998; many issues relating to
lifetime registration, ten year registration, and discretionary registration have not yet
been raised at the appellate level. In 2008 the Supreme Court reviewed and rejected a defendant’s claim that the trial court abused its discretion in ordering ten years
registration after accepting his guilty plea to risk of injury to a child. State v. Arthur
H., 288 Conn. 582 (2008). The Court rejected the defendant’s argument that the trial
court had exercised its statutory discretion solely based on its finding that he had
committed the crime for a sexual purpose. A finding of sexual purpose is prerequisite to a sentencing court’s consideration of whether to order registration but it does
not raise a “presumption” that there is a risk to public safety so as to require registration. The Court found that the trial court had relied on other factors, including
future dangerousness: “it seems clear from the record that the trial court did weigh
this factor in deciding to order registration.” id. at 593-95.
140
141
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concerned the adequacy, not the existence, of a canvas to
waive a basic trial right guaranteed by the Sixth Amendment.
The defendant claimed that “his waiver of counsel was not
knowing, intelligent and voluntary because the trial court
failed to inform him of the range of possible penalties that he
would face upon conviction.”146 Applying on-point precedent, state v. diaz,147 the five justice majority in t.R.d. concluded: “as in diaz, there is simply no evidence present in the
record from which we could infer that the defendant had any
meaningful appreciation of the period of incarceration he
faced if convicted of the charges he faced.”148
In the coming year, the Supreme Court may explicate on
appellate review under state v. Golding and its relationship to
waiver doctrine under state v. Fabricatore.149
VII. C ONFRONTATION A ND C ONSOLIDATION
Courts continue to explore the contours of the United
States Supreme Court’s paradigm-shifting confrontation
clause decision five years ago in crawford v. washington.150
in which the Court held that the confrontation clause bars
admission of hearsay statement that are “testimonial” in
nature if the declarant is “unavailable” as a trial witness and
id. at 198-99.
274 Conn. 818 (2005).
148 t.R.d., 286 Conn. at 206. Justice Schaller, joined by Justice Norcott, in dissent argued that the defendant in t.R.d. adamantly insisted on discharging his trial
counsel, making the record regarding waiver of counsel inapposite to that in diaz,
and that the two cases are further distinguishable on other grounds, including “the
magnitude of the possible sentence in the overall picture” in diaz—exposure to a
sentence of nearly fifty years and actual imposition of a forty-three year sentence as
compared to the exposure of five years and actual imposition of a lesser sentence in
t.R.d. id. at 229-32.
149 State v. Fabricatore, 281 Conn. 469 (2007). see, e.g., State v. Akande, 111
Conn. App. 596, 606-10 (2008) (discussing Golding review and express and implied
waivers of claims under Fabricatore and State v. Brewer, 283 Conn. 352 (2007)),
cert. granted, 290 Conn. 918 (2009) (certified issue: "Did the Appellate Court properly determine that the defendant waived his claim that the jury instructions were
constitutionally deficient?").
150 541 U.S. 36 (2004). No doubt crawford’s architect, Justice Scalia, would be
sensitive to any implication that the decision created a new paradigm for the confrontation clause since the decision’s generative force stems from its recovering and
reintroduction of the clause’s original historical purpose, i.e., to require trial by challengeable testimony and not trial by evidence that functions in lieu of testimony, e.g.,
trial by affidavit.
146
147
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developments in connecticut cRiminal law: 2008
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the defendant has not had an opportunity to cross-examine
the declarant about the statement. Last year the Connecticut
Supreme Court reviewed several cases that delved into the
nuances of the unavailability and testimonial elements in the
crawford rule. In two cases the Supreme Court held that the
confrontation clause is not implicated under crawford where
the out-of-court declarant is available at trial to be crossexamined but is claimed to be “functionally unavailable” to
the defense by dint of a loss of memory or the witness’s outright denial that he ever made the out-of-court statement. In
state v. simpson,151 a child witness testified that “she did not
recall” making statements recorded in a videotape interview
of her that was part of a DCF and police investigation of sexual assault and risk of injury to a child by her great uncle, but
the Court rejected the defendant’s claim that the complainant’s lack of recall made her “‘functionally unavailable’” and pointed out that she was extensively cross-examined at trial so as to satisfy the constitutional right to crossexamine her.152
Similarly, in state v. Holness,153 the
Supreme Court rejected the claim that admission of a signed,
written statement of a witness to police violated the confrontation clause because the witness at trial testified that he
“did not recognize” the statement and “did not recall telling
the police most of what appeared in the statement.”154
In state v. slater,155 Justice Katz for the Court provided a
thorough review of the standard for deciding whether a statement is testimonial in nature under crawford and later cases
that have refined the meaning of “testimonial.”156 In slater,
the Court wrote: “Although we recognize that there is no
comprehensive definition of ‘testimonial,’ it is clear that
much of the Supreme Court’s and our own jurisprudence
151
286 Conn. 634 (2008).
id. at 636-37, 651-55.
153 289 Conn. 535 (2008).
154 id. at 546-50.
155 285 Conn. 162, cert. denied, 128 S.Ct. 2885, 171 L.Ed.2d 822 (2008).
156 Justice Katz makes clear that crawford is correctly understood to have held
that “the confrontation clause applies only to testimonial hearsay statements” and
that the old doctrine applying a reliability test to all challenged hearsay has been
abandoned by most courts, in light of davis v. washington, 547 U.S. 813 (2006).
slater, 285 Conn. at 169-71 and n. 6.
152
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applying crawford largely has focused on the reasonable
expectation of the declarant that, under the circumstances, his
or her words later could be used for prosecutorial purposes.”157 In slater the Court affirmed the Appellate Court’s
previous conclusion that statements made by the victim of a
sexual assault to passersby on the street from whom she
sought help and to medical personnel who administered a
rape kit did not constitute “testimonial” hearsay and thus did
not implicate the confrontation clause158 because in each
instance the specific circumstances “would not have led the
victim to believe that her statements . . . would be used at
trial.”159 Justice Katz also wrote the Court’s opinion in state
v. smith,160 rejecting the defendant’s claim that admission of
a four-hour recording of a conversation between his co-conspirator and a cellmate violated crawford because the cellmate, deported before trial, was unavailable for cross-examination in a murder trial and had made testimonial statements
triggering the confrontation guarantee.161
state v. snelgrove, discussed previously, involved the consolidation for trial of three murder charges where evidence of
each was cross-admissible as uncharged misconduct to prove
the other charges, thereby undermining the defendant’s claim
that the joint trial prejudiced him. A number of other 2008
cases involved severance and consolidation claims. In state v.
157 id. at 172 (emphasis added). The Court later wrote: “We emphasize, however, that this expectation must be reasonable under the circumstances and not some
subjective or far-fetched, hypothetical expectation that takes the reasoning in
crawford and davis to its logical extreme.” id. at 175.
158 Unavailability was established because the victim-declarant had died “of
causes unrelated to the assault.” id. at 167.
159 id. at 177, 183-85. The Court emphasized that its conclusions were not categorical, but hinged on the specific circumstances surrounding each challenged
hearsay statement.
160 289 Conn. 598 (2008).
161 The defendant at trial conceded that his co-conspirator’s highly incriminating statements in the conversation, implicating himself and the defendant in the
planning and commission of the murder and destruction of the body, were not testimonial so as to trigger crawford protection, but did argue that the statements were
inadmissible under the older confrontation test, now abandoned, of ohio v. Roberts,
448 U.S. 56 (1980). smith, 289 Conn. at 614, 616-17. Because of the defendant’s
concession, the Court found that admission of the co-conspirator’s recorded statements did not raise a constitutional issue; id. at 630 n. 27; and held that they were
properly admitted under § 8-6(4) of the Code of Evidence as “a dual-inculpatory
statement against penal interest.” id. at 630.
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developments in connecticut cRiminal law: 2008
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davis,162 the Supreme Court found that the defendant was not
substantially prejudiced by his trial on three unrelated informations,163 one of which involved evidence of the defendant’s
“brutal and shocking” conduct, because the trial court’s “thorough, explicit, and proper jury instructions cured the risk of
prejudice to the defendant and, therefore, preserved the jury’s
ability to consider fairly and impartially the offenses charged
in the jointly tried cases.”164 Concurring in the result, Justice
Katz wrote separately to make two points, one directed at trial
courts called to rule upon motions for consolidation and severance, the other directed at courts of review called to decide
whether joinder was proper.165 As to the trial standard, Justice
Katz would have the current presumption in favor of joinder
apply only in cases where substantive evidence is crossadmissible as other crimes evidence;166 otherwise “trial courts
should presume prejudice and grant joinder only when the risk
of prejudice appears to be ‘substantially reduced.’”167 As to
appellate review, Justice Katz would have courts make two
separate determinations, as to error and as to harm: “(1)
whether the trial court abused its discretion; and (2) whether
that impropriety constituted harmful error. We apply this
rubric to every other claim of nonconstitutional error, and I
see no reason to do otherwise in our review of a claim of
improper joinder.”168
VIII. C ONCLUSION
In 2009 it will be interesting to see whether the Supreme
Court on its own, or in coordination with judicial committees
162
286 Conn. 17 (2008).
The trial court granted the defendant’s motion to sever fourth information
because it included evidence that the defendant threatened children at gunpoint in
their home, which “‘could well fuel the prejudice of jurors against the defendant’”
in the other three cases. id. at 21-22.
164 id. at 34-35.
165 id. at 38-56 (Katz, J., concurring, joined by Palmer, J.).
166 id. at 38-45.
167 id. at 45.
168 id.at 45-46. Justice Katz writes: “Although the dispositive question is prejudice, that question is viewed from a predictive perspective when considering
whether the trial court had abused its discretion when acting on the motion to join
or sever, but is viewed from a fully informed perspective when determining whether
improper joinder was harmful[.]” id. at 48.
163
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or the legislature’s Judiciary Committee, will look to clarify
the legal status of the Code of Evidence and to establish
appellate rules for review of evidentiary rulings based on the
Code. The legacy of deJesus will also require that trial and
appellate courts establish boundaries for application of the
new propensity rule in prosecutions for sex offenses and
offenses that qualify under the snelgrove test. It will be interesting to see whether and how the rules and commentary in
the Code of Evidence will affect the propensity rule.
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Leading Articles
2008 developments in
Connecticut Business Entity Law . . . . . . . . . . . . . . . . . . . . . . Ernest M. Lorimer
Workers’ Compensation
developments 2007-2009 . . . . . . . . . . Robert J. Enright and John P. Clarkson
Commercial Litigation:
The Year in Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Thomas J. Sansone
2008 developments in
Connecticut Estate and Probate Law . . Jeffrey A. Cooper and John R. Ivimey
developments in
Connecticut Criminal Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . Timothy H. Everett
JUNE 2009
VOLUME 83 NO. 2
ISSN: 0010-6070
USPS: 129-060