Bartholomew v. Schweizer

• Decision Date: 12 March 1991
• Docket Number: No. 13921,13921
• Citation: 587 A.2d 1014,217 Conn. 671
• Court: Connecticut Supreme Court
• Parties: Gregory BARTHOLOMEW v. Nancy SCHWEIZER et al.

Page 1014

587 A.2d 1014

217 Conn. 671

Gregory BARTHOLOMEW v.Nancy SCHWEIZER et al.

No. 13921.

Supreme Court of Connecticut.

Argued Jan. 17, 1991.

Decided March 12, 1991.

Frederick W. Danforth, Jr., with whom were Nada K. Morin and, on the brief, Marcella Gereg, for appellants(defendants).

Max F. Brunswick, for appellee(plaintiff).

Before PETERS, C.J., and CALLAHAN, GLASS, COVELLO and HULL, JJ.

PETERS, Chief Justice.

The principal issue in this appeal is the constitutionality of General Statutes § 52-216b, ¹ which permits closing argument to the trier of fact to include counsel's suggestion of an appropriate monetary recovery.The plaintiff, Gregory Bartholomew, brought this personal injury action to recover damages arising out of an automobile accident allegedly caused by the negligent driving of the named defendant, Nancy Schweizer, of a car owned by the defendantGeneral Motors Acceptance Corporation.The trial court, Gormley, J., granted the plaintiff's motion for summary judgment on the issue of liability on September 5, 1989.After the effective date of Public Acts 1989, No. 89-319, now codified as General Statutes § 52-216b, ² a jury trial on the issue of damages resulted in a plaintiff's verdict of $150,000, in accordance with which the trial court, Berdon, J., rendered judgment in favor of the plaintiff.We transferred the defendants' appeal from that judgment to this court pursuant to Practice Book§ 4023, and now affirm.

The jury could reasonably have found that the nineteen year old plaintiff was injured when, on September 14, 1985, the defendant Schweizer drove her car so as to strike the plaintiff's car from the rear.As a result of the accident, the plaintiff suffered pain and stiffness in his back, and missed work for five weeks, working only half-time for two more weeks before returning to work full-time.At the time of the accident, the plaintiff had been actively engaged in karate training, which he had begun six months earlier.Because of the injuries received in the accident, the plaintiff was unable to pursue his future plans for advanced karate training, for participation in karate competition and for qualification as a karate instructor.

On October 27, 1989, toward the end of the jury trial on damages, counsel for the plaintiff informed counsel for the defendants that he intended, in his closing argument, to suggest to the jury specific monetary sums as damages for the plaintiff's injuries.The trial court permitted this argument, ³ despite the defendants' motion in limine that it be disallowed on state constitutional grounds.The trial court's subsequent charge to the jury included a cautionary instruction, in accordance with subsection (b) of § 52-216b, that arguments of counsel are not evidence.⁴The trial court also instructed the jury that it could consider, as a compensable injury, the plaintiff's claim that he could not pursue karate as an avocation or as a career because of the injuries he had sustained in the accident.The defendants excepted to the portion of the charge concerning the plaintiff's karate activities.

After the jury returned a verdict awarding the plaintiff $150,000 in damages, the defendants moved to set aside the verdict and for remittitur.The trial court denied the motions and rendered judgment on the verdict for the plaintiff.

The defendants' appeal from the judgment raises two constitutional and two nonconstitutional issues.The defendants contend that § 52-216b is unconstitutional because it violates the separation of powers provision of the Connecticut constitution and because it infringes upon the constitutional right to trial by an impartial jury.They also maintain that the trial court's "karate charge" was contrary to law and that the trial court should have set aside the jury's verdict as excessive in amount, or reduced it by a remittitur.We are unpersuaded by any of these contentions.

I

Because a validly enacted statute carries with it a strong presumption of constitutionality, those who challenge its constitutionality must sustain the heavy burden of proving its unconstitutionality beyond a reasonable doubt.State v. Breton, 212 Conn. 258, 269, 562 A.2d 1060(1989);University of Connecticut Chapter, AAUP v. Governor, 200 Conn. 386, 391, 512 A.2d 152(1986);Eielson v. Parker, 179 Conn. 552, 560, 427 A.2d 814(1980);State v. Darden, 171 Conn. 677, 678, 372 A.2d 99(1976).In construing a statute, moreover, we will search for an effective and constitutional construction that reasonably accords with the legislature's underlying intent.State v. Floyd, 217 Conn. 73, 79, 584 A.2d 1157(1991);McConnell v. Beverly Enterprises-Connecticut, Inc., 209 Conn. 692, 705-706, 553 A.2d 596(1989).

A

The defendants' principal claim for the unconstitutionality of § 52-216b focuses on the alleged incompatibility of the statute with the separation of powers provision of article second of the Connecticut constitution.That article provides: "The powers of government shall be divided into three distinct departments, and each of them confided to a separate magistracy, to wit, those which are legislative, to one; those which are executive, to another; and those which are judicial, to another."

Recognizing that executive, legislative and judicial powers frequently overlap, we have consistently held that the doctrine of the separation of powers cannot be applied rigidly.University of Connecticut Chapter, AAUP v. Governor, supra, 200 Conn. at 394, 512 A.2d 152;Adams v. Rubinow, 157 Conn. 150, 155, 251 A.2d 49(1968);In re Application of Clark, 65 Conn. 17, 38, 31 A. 522(1894)."In the context of challenges to statutes whose constitutional infirmity is claimed to flow from impermissible intrusion upon the judicial power, we have refused to find constitutional impropriety in a statute'simply because it affects the judicial function....' "(Citation omitted.)Heslin v. Connecticut Law Clinic of Trantolo & Trantolo, 190 Conn. 510, 522, 461 A.2d 938(1983).A statute violates the constitutional mandate for a separate judicial magistracy only "if it represents an effort by the legislature to exercise a power which lies exclusively under the control of the courts ... or if it establishes a significant interference with the orderly conduct of the Superior Court's judicial functions."(Citations omitted.)State v. Darden, supra, 171 Conn. at 679, 372 A.2d 99;University of Connecticut Chapter, AAUP v. Governor, supra.

Concededly, our decisions in Carchidi v. Rodenhiser, 209 Conn. 526, 551 A.2d 1249(1989), andPool v. Bell, 209 Conn. 536, 551 A.2d 1254(1989), were the occasion for the enactment of § 52-216b.In these caseswe held as a matter of judicial policy that, in their closing arguments to a jury, counsel would no longer be permitted to suggest the pecuniary amount of damages claimed to be recoverable either by advancing a "lump sum" amount;Carchidi v. Rodenhiser, supra, 209 Conn. at 535, 551 A.2d 1249; or by articulating a mathematical formula.Pool v. Bell, supra, 209 Conn. at 539-40, 551 A.2d 1254.The legislative history of § 52-216b demonstrates that its purpose was to overturn the limitations on oral argument that we had imposed.SeeSubstitute House BillNo. 6990, 1989 Sess.;32 S.Proc., Pt. 11, 1989 Sess., p. 3913, remarks of Sen. Anthony V. Avallone;32 H.R.Proc., Pt. 14, 1989 Sess., p. 4781, remarks of Rep. Jay B. Levin.Although this record establishes that the statute"affects the judicial function," it does not resolve the issue whether the function regulated is one that is properly or historically within the exclusive control of the judicial branch of government.

Citing some of the arguments of policy on which we relied in our decision in Carchidi, the defendants advance three contentions to sustain their position that the supervision of closing arguments by counsel is a matter within the exclusive control of the judiciary.They urge us to conclude that § 52-216b conflicts with (1) the traditionally recognized broad discretion of trial courts to control closing arguments; (2) the judicial authority to discipline and regulate the conduct of counsel; and (3) the prohibition against the submission of the ad damnum clause to the jury contained in Practice Book§ 313.We disagree that the statute, fairly construed, is unconstitutional.

Although we have regularly held that trial courts have broad discretion to control oral arguments, we have never held that the court's authority in this regard is exclusive of concurrent legislative authority.For instance, the defendants cite State v. Hoyt, 47 Conn. 518, 535-36(1880), as having established that a trial court has the power to limit the time allotted for closing arguments of counsel.In that case, however, a statute provided that " 'in no trial before the Superior Court ... shall counsel occupy more than one hour in argument, unless the court shall, on motion for special cause before the commencement of argument, allow a longer time.' "⁵Id., at 535.The court in Hoyt assumed, however, the existence of concurrent legislative and judicial authority to limit the arguments of counsel.The only issue that the court addressed was whether such a limitation violated a criminal defendant's constitutional right "to be heard by himself and by counsel."Id.

None of the cases that recite the uncontroverted principle that " '[t]he trial court is invested with a large discretion with regard to the arguments of counsel' ";Tomczuk v. Alvarez, 184 Conn. 182, 193, 439 A.2d 935(1981);Levin v. Ritson, 179 Conn. 223, 226, 425 A.2d 1279(1979);see alsoState v. Herring, 210 Conn. 78, 102, 554 A.2d 686, cert. denied, --- U.S. ----, 109 S.Ct. 3230, 106 L.Ed.2d 579(1989); suggests that such power is exclusive of legislative authority.Like the authority to adjudge the competency of witnesses, where we have recognized that exercise of a legislative prerogative to limit judicial discretion is...