Wiseman v. Armstrong, (SC 18152) (Conn. 3/9/2010)

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ELAINE WISEMAN, ADMINISTRATRIX (ESTATE OF BRYANT WISEMAN),

v. JOHN J. ARMSTRONG ET AL.

(SC 18152).

Supreme Court of Connecticut.

Argued September 8, 2009.

Officially released March 9, 2010.

Antonio Ponvert III, for the appellant (plaintiff).

Terrence M. O'Neill, assistant attorney general, with whom was Ann E. Lynch, assistant attorney general, and, on the brief, Richard Blumenthal, attorney general, and Henri Alexandre, assistant attorney general, for the appellees (named defendant et al.).

Rogers, C. J., and Norcott, Katz, Palmer, Vertefeuille, Zarella and McLachlan, Js.

Opinion

VERTEFEUILLE, J.

The plaintiff, Elaine Wiseman, in her capacity as administratrix of the estate of her deceased son, Bryant Wiseman (decedent), appeals¹ from the judgment of the trial court rendered in favor of the named defendant, John J. Armstrong, in his capacity as the commissioner of correction, and others² in her action for the wrongful death of the decedent while he was incarcerated at Garner correctional institution in Newtown. The plaintiff alleged that the decedent's death resulted from the defendants' alleged indifference to the decedent's serious medical and mental health needs and the use of excessive force. The plaintiff alleged that the decedent, who was mentally ill, died after being forcefully subdued and restrained by the defendants after he had become disruptive due to a lack of antipsychotic medication.

The case was tried to a jury, which returned a verdict for the defendants, and the trial court accepted the verdict. Thereafter, pursuant to Practice Book § 16-32,³ the plaintiff requested that the trial court poll the jury. The trial court denied the plaintiff's request. The plaintiff subsequently filed a motion to set aside the verdict and for a new trial, contending, inter alia, that § 16-32 imposed a mandatory duty on the trial court to poll the jury and the trial court's failure to do so constituted per se reversible error. Following oral argument and the receipt of memoranda of law, the trial court denied the motion. The trial court concluded that even if the right to a jury poll pursuant to § 16-32 was mandatory, the court's denial of the plaintiff's request was harmless. The trial court therefore rendered judgment in accordance with the jury's verdict. This appeal followed.

On appeal, the plaintiff claims that the trial court improperly denied her motion to set aside the verdict. Specifically, the plaintiff asserts that the trial court violated the mandatory provisions of § 16-32 by refusing to poll the jury and improperly concluded that the failure to poll was harmless. The plaintiff contends that a failure to poll always causes harm, and therefore constitutes per se reversible error. The defendants respond that § 16-32 is discretionary, and the failure to poll should be subject to harmless error review by this court. We agree with the plaintiff that § 16-32 imposes a mandatory duty on the trial court to poll the jury when requested to do so by a party, but we also agree with the defendants that the failure to poll should be subject to review for harmlessness. Because we agree with the trial court's conclusion that there was no harm in the present case, we affirm the judgment of the trial court.

I

The plaintiff first claims that the trial court violated § 16-32 by denying her request to poll the jury. Specifically the plaintiff contends that because § 16-32 has language identical to Practice Book § 42-31,⁴ which this court has construed as imposing a mandatory duty on the trial court to poll a jury in a criminal trial when requested; State v. Pare, 253 Conn. 611, 625, 755 A.2d 180 (2000); § 16-32 should similarly be construed as imposing a mandatory duty on the trial court to poll the jury in a civil trial upon a party's request.⁵ The defendants respond that § 16-32 is discretionary because it is a rule of civil practice unlike § 42-31, which is a rule of criminal practice. Specifically, the defendants assert that because Pare relied on factors that are germane only in the criminal context, this court's analysis of § 42-31 is inapplicable to § 16-32, which applies to civil cases. We agree with the plaintiff.

As a preliminary matter, we set forth the applicable standard of review. "The interpretive construction of the rules of practice is to be governed by the same principles as those regulating statutory interpretation." Commissioner of Social Services v. Smith, 265 Conn. 723, 733-34, 830 A.2d 228 (2003); see also State v. Pare, supra, 253 Conn. 622 ("principles of statutory construction apply `with equal force to Practice Book rules' "). The interpretation and application of a statute, and thus a Practice Book provision, involves a question of law over which our review is plenary. Commissioner of Social Services v. Smith, supra, 734.

"The process of statutory interpretation involves the determination of the meaning of the statutory language as applied to the facts of the case . . . . When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature.. . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case . . . . In seeking to determine that meaning . . . [General Statutes] § 12-z⁶ directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered. . . . When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter . . . . We recognize that terms in a statute are to be assigned their ordinary meaning, unless context dictates otherwise . . . ." (Citations omitted; internal quotation marks omitted.) Rainforest Cafe, Inc. v. Dept. of Revenue Services, 293 Conn. 363, 371-73, 977 A.2d 650 (2009).

In accordance with § 1-2z, we first turn to the relevant language of the rule of practice at issue, § 16-32, which provides that "after a verdict has been returned and before the jury have been discharged, the jury shall be polled at the request of any party or upon the judicial authority's own motion." (Emphasis added.) Practice Book § 16-32. We must determine whether "shall" as used in § 16-32 is mandatory or directory. See Weems v. Citigroup, Inc., 289 Conn. 769, 790, 961 A.2d 349 (2008). "The test to be applied in determining whether a statute is mandatory or directory is whether the prescribed mode of action is the essence of the thing to be accomplished, or in other words, whether it relates to a matter of substance or a matter of convenience.. . . If it is a matter of substance, the statutory provision is mandatory. . . . If, however, the . . . provision is designed to secure order, system and dispatch in the proceedings, it is generally held to be directory. . . ." (Internal quotation marks omitted.) Id. "Definitive words, such as must or shall, ordinarily express legislative mandates of nondirectory nature." (Internal quotation marks omitted.) State v. Pare, supra, 253 Conn. 623. As we recently noted, "the word shall creates a mandatory duty when it is juxtaposed with [a] substantive action verb." (Internal quotation marks omitted.) Rainforest Cafe, Inc. v. Dept. of Revenue Services, supra, 293 Conn. 376.

In applying these principles to § 16-32, we focus on the text stating that "the jury shall be polled . . . ." This language juxtaposes "shall" with the verb "polled." Polling the jury, moreover, is the purpose of this provision, and is not a matter of convenience. As a result, we conclude that the poll is a substantive right established by this rule of practice and thus imposes a mandatory duty on the trial court.

The history of § 16-32 provides interpretive guidance that buttresses our textual analysis. When this rule was in the process of being adopted in 1997, provisionally codified as Practice Book § 3181,⁷ it contained the word "shall." This language copied the text of the then recently amended Practice Book § 869, which was the precursor to § 42-31, the criminal procedure equivalent provision. Prior to 1995, § 869 provided in relevant part that "[a]fter a verdict has been returned and before the jury have been discharged, the jury may be polled at the request of any party or upon the judicial authority's own motion." (Emphasis added.) Practice Book, 1978, § 869. In June, 1995, the judges of the Superior Court amended § 869, to take effect October 1, 1995, by replacing the word "may" with the word "shall"; see Practice Book, 1996, § 869; in order to emphasize the mandatory nature of the poll when requested in a criminal case. See State v. Pare, supra, 253 Conn. 624-25; see generally Krondes v. Norwalk Savings Society, 53 Conn. App. 102, 121-22, 728 A.2d 1103 (1999) ("§ 42-31 . . . now requires that the jury be polled at the request of any party" [emphasis added]). Therefore, when the judges of the Superior Court adopted § 3181, the precursor to § 16-32, in 1997 and copied the language of the recently amended § 869, the criminal proceedings provision, it is logical to conclude that they similarly intended to impose a mandatory duty upon the trial court to poll the jury in a civil case when requested.

Pursuant to General Statutes § 1-2z, we next consider Practice Book § 16-32 in relation to other provisions of the Practice Book. It is well settled that we look "to the broader statutory scheme to ensure the coherency of our construction" because it is presumed the legislature "created a harmonious and...