Opinion
No. CR-04-223818S
May 24, 2006
MEMORANDUM OF DECISION ON DEFENDANT'S DOUBLE JEOPARDY MOTION TO DISMISS
This memorandum of decision addresses the Defendant's Double Jeopardy Motion to Dismiss filed under date of March 30, 2006 ("Double Jeopardy Motion to Dismiss"). Under the above docket number, the defendant Gregory K. Senick has been charged with: one count of Larceny in the first degree in violation of General Statutes § 53a-122(a)(2); one count of Conspiracy to Commit Larceny in the first degree in violation of § 53a-122(a)(2) by way of General Statutes § 53a-48(a); one count of Larceny in the first degree in violation of General Statutes § 53a-122(a)(4); and one count of Conspiracy to Commit Larceny in the first degree in violation of § 53a-122(a)(4) by way of § 53a-48(a). These charges are based upon the state's allegations that the defendant wrongfully took and obtained property in the form of material, labor, and services for the repair and maintenance of premises he leased from the State of Connecticut located at 7 Undercliff Road in Meriden, Connecticut, without paying therefor, although he was obligated to pay for such material, labor, and services pursuant to said lease. The defendant submitted pleas of not guilty to each of the four charges pending against him, and elected trial to a jury.
In lieu of submitting a separate memorandum of law, the defendant's Motion to Dismiss sets forth in detail his legal and factual claims in support of the requested relief.
Through his Motion to Dismiss, the defendant specifically argues that he was subject to a "unique punishment" when Governor M. Jodi Rell "publicly ordered [him] suspended without pay from his position as a state trooper and chief of staff for former Public Safety Commissioner Arthur Spada." Motion to Dismiss. The defendant further asserts that the pending criminal prosecution represents "the executive branch's attempt to impose a second punishment for the same acts [which] is constitutionally barred under the Fifth and Fourteenth Amendments to the United States Constitution." (Footnote omitted.) Motion to Dismiss. Notwithstanding the vigor of his contentions, utilizing the appropriate measure of law and facts as stipulated to by the parties, the court is constrained to conclude that the defendant has here failed to present a colorable double jeopardy claim. Accordingly, for the reasons set forth below, the defendant's Double Jeopardy Motion to Dismiss is hereby DENIED.
I. PROCEDURAL HISTORY
To enable full and fair consideration of the identified pretrial constitutional claims, the court held a preliminary hearing at which the defendant was provided with the opportunity to show whether he has presented a colorable double jeopardy claim; such a showing would entitle him to a full evidentiary hearing on the alleged constitutional violations, a procedure not inconsistent with that utilized when a defendant challenges the sufficiency of an arrest warrant affidavit. See Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). The preliminary hearing was conducted on May 17, 2006. In the course of this hearing, numerous exhibits were presented to the court; the parties have stipulated to the introduction of these exhibits for the limited purpose of the present Motion to Dismiss alone. Each party was presented with an opportunity for extensive oral argument and rebuttal, which supplemented the detailed and comprehensive briefs previously submitted. (See Double Jeopardy Motion to Dismiss, and State's Opposition to the Defendant's Motion to Dismiss Based on the Alleged Violation of Double Jeopardy Rights, submitted under date of April 10, 2006 ("State's Opposition").)
See State v. Tate, 256 Conn. 262, 276-77, 773 A.2d 308 (2001). ("For a claim to be colorable, the defendant need not convince the trial court that he necessarily will prevail; he must demonstrate simply that he might prevail.")
II. FACTS
Both the defendant and the state have stipulated to the following facts for the court's use in consideration of the present motion alone:
On June 30, 2004, the defendant, then a Major with the Connecticut State Police, reported to Arthur Spada ("Spada"), then Commissioner of Public Safely for the State of Connecticut. On that date, the defendant was arrested and charged with the theft of state property pursuant to a warrant for which probable cause had been found by an independent magistrate. In response to this arrest, the defendant requested that Spada return him to his previous rank of captain; this rank would entitle him to greater labor-related protections than those he could access while holding the rank of major. (Exhibit 3, Spada Affidavit, ¶ 9.) Spada granted the defendant's request and placed him on administrative leave with pay. (Exhibit 3, Spada Affidavit, ¶ 9.)
On July 1, 2004, M. Jodi Rell was sworn into office as the Governor of the State of Connecticut. (See Exhibits 10, 11; See also Exhibit 3, Spada Affidavit, ¶ 11.) In this capacity, the Governor rescinded Spada's order and indicated that she would instead be suspending the defendant without pay. (Exhibit 3, Spada Affidavit, ¶ 11.) The Governor announced this decision publicly and indicated that she was imposing a suspension without pay in response to the defendant's arrest to show the public that she "mean[s] business" with regard to actions which would address public perceptions of state corruption. (Exhibit 11.)
At oral argument, the parties stipulated, for the purposes of this motion, that the Governor was sworn into office late on the evening of July 1, 2004.
On July 2, 2004, an "emergency meeting" of the governor's staff was held; at this meeting, the issue of the defendant's employment status was discussed at some length. (Exhibit 3, Spada Affidavit, ¶¶ 13-20.) At oral argument, the parties stipulated, for the purposes of this motion alone, that approximately two weeks later, the defendant's suspension was rescinded; he was reinstated as an employee of the Connecticut State Police; his leave without pay was retroactively established as a leave with pay; he was placed on a thirty-day extension of state employment; and, after a series of extensions, he eventually retired with the rank of captain.
For the purposes of this motion, the parties have stipulated, without quantification, that the defendant's suspension and the Governor's public statements regarding his suspension have had a substantial, negative impact on his reputation in the community.
III. CONSTITUTIONAL PRINCIPLES
"The double jeopardy clause of the fifth amendment to the United States constitution provides: `[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb . . .' The double jeopardy clause is applicable to the states through the due process clause of the fourteenth amendment. See Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969)." State v. Crawford, 257 Conn. 769, 774, 778 A.2d 769 (2001).
The defendant ostensibly relies upon the succor provided by the United States constitution. See Double Jeopardy Motion to Dismiss. However, the court also notes that the right to protection against double jeopardy is implicit in due process guarantees of our state constitution. See, e.g., State v. Nixon, 231 Conn. 545, 550, 651 A.2d 1264 (1995). "Although the Connecticut constitution has no specific double jeopardy provision, we have held that the due process guarantees of article first, § 9, include protection against double jeopardy. Kohlfuss v. Warden, 149 Conn. 692, 695, 183 A.2d 626, cert. denied, 371 U.S. 928, 83 S.Ct. 298, 9 L.Ed.2d 235 (1962)." (Citation omitted.) State v. Crawford, supra, 257 Conn. 774. Those protections, however, do not provide any broader protection against double jeopardy than does the federal constitution. See State v. Tuchman, 242 Conn. 345, 359-60, 699 A.2d 952 (1997), cert. denied, 522 U.S. 1101, 118 S.Ct 907, 139 L.Ed.2d 922 (1998).
The Connecticut Supreme Court has repeatedly affirmed the fundamental principles of double jeopardy protections. "The constitutional guarantee against double jeopardy serves three separate functions: (1) It protects against a second prosecution for the same offense after acquittal. (2) It protects against a second prosecution for the same offense after conviction. (3) And it protects against multiple punishments for the same offense [in a single trial]. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) [overruled on other grounds, Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989)] . . . State v. Hill, 237 Conn. 81, 99, 675 A.2d 866 (1996). The first two prongs, or functions, may be regarded as constituting the `successive prosecution' part of the double jeopardy protection. The third prong, which is analytically different from the first two, involves multiple punishments for the same offense in a single prosecution." State v. Crawford, supra, 257 Conn. 769, 776-77.
IV. THE DEFENDANT'S DOUBLE JEOPARDY CLAIMS
The defendant first indicates that he is pursuing his motion to dismiss under both the successive prosecution as well as the multiple punishments prongs of the double jeopardy clause. Id.; see Double Jeopardy Motion to Dismiss. In opposition, the state argues that because the defendant has framed his double jeopardy challenge under the "multiple punishments" prong, his claim is not ripe for review unless and until there is a guilty verdict on those challenged offenses. See State's Opposition. The state correctly notes that the Connecticut Supreme Court has expressly reserved interlocutory appeals for double jeopardy claims only where the successive prosecution prongs of the double jeopardy clause are implicated. State v. Crawford, supra, 779. As Justice Borden commented in Crawford, though, cases involving administrative sanctions followed by criminal charges, such as the pending case, more properly call for application of the successive prosecution prong of the double jeopardy jurisprudence in lieu of the multiple punishments for the same offense principles of law. Id. In the context of the present litigation, the result is the same under either analysis.
As Justice Borden wrote: "Although we may have analyzed these cases under the third, or multiple punishments, prong of our double jeopardy jurisprudence, [a defendant's search for] . . . immunity even from being tried on the criminal charges, . . . is consistent with the rationale for permitting interlocutory appeals in the successive prosecution context." (Emphasis in original.) State v. Crawford, supra, 779.
The defendant in the present case argues that he has already been "prosecuted" once by the executive branch of the state government; therefore, he asserts, he is now entitled to constitutional protection from the burdens of a second trial. Such an argument, contemplated by the Connecticut Supreme Court in Crawford, supports the court addressing the substance of the defendant's motion at this preliminary stage through a hearing to ascertain whether or not any colorable double jeopardy issues can be presented. See Part I.
The defendant's claim is predicated on his assertion that the sanctions imposed on him by the Governor of the State of Connecticut, set forth in Part II, were so unique and so punitive in design and effect that they constitute a punishment that is criminal in nature for double jeopardy purposes. The defendant argues that these sanctions did not simply consist of a suspension and deprivation of salary, but also involved significant misconduct on the part of the Governor's Office, which deprived him of the due process rights to which he was entitled as captain in the employ of the Connecticut State Police, and to which he is also entitled as a defendant in a criminal prosecution. The defendant has emphasized that the Governor's decision to publicize her decision to suspend the defendant without pay not only shows that he was used as a political scapegoat for the previous administration's ethical problems, but also disparaged his reputation to such a degree that it should be considered in determining whether the sanctions, taken as a whole, constitute criminal punishment for double jeopardy purposes. With this fact-based foundation, the defendant fundamentally argues that the sanctions imposed upon him are so harsh, and so unparalled in Connecticut's double jeopardy jurisprudence that the court should apply the principles of Hudson v. United States, 522 U.S. 93, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997), to determine that the defendant has made out a colorable claim that he was subjected to previous prosecution and punishment for double jeopardy purposes.
At oral argument and in his Double Jeopardy Motion to Dismiss, the defendant cited numerous occurrences which he claims to have constituted unique and oppressive punishment imposed by the Governor's Office, separate and apart from the pending criminal proceedings. In addition to the multiple related exhibits, introduced at the hearing on May 17, 2006, the defendant appended related exhibits to his motion. The court notes that the legal authority cited by the defendant in his Double Jeopardy Motion to Dismiss was subsequently overturned by the United States Supreme Court's decision in Hudson v. United States, discussed herein. Following oral argument, it is clear that the defendant relies on Hudson in support of his motion in lieu of the legal authority referenced in his motion cum memorandum of law in support of dismissal; accordingly, the court will deem citation to those previously cited cases abandoned. See Practice Book § 64-1. ("The court's decision shall encompass its conclusion as to each claim of law raised by the parties and the factual basis therefor.") As previously noted, the court recognizes that both in the defendant's brief and oral argument, what the defendant essentially seeks is "immunity even from being tried on the criminal charges." State v. Crawford, 257 Conn. 779.
Connecticut's appellate courts have closely followed the developmental stages of federal double jeopardy jurisprudence; to this end, our state has adopted the most chronologically mature approach to determining whether a civil sanction constitutes punishment for double jeopardy purposes. See State v. Hickam, 235 Conn. 614, 668 A.2d 1321 (1995), cert. denied, 517 U.S. 1221, 116 S.Ct. 1851, 134 L.Ed.2d 951 (1996); Hudson v. United States, supra, 522 U.S. 93; State v. Duke, 48 Conn.App. 71, 73-77, 708 A.2d 583, cert. denied, 244 Conn. 911, 713 A.2d 829 (1998). A brief historical summary of this jurisprudence serves to emphasize that in addressing the defendant's Double Jeopardy Motion to Dismiss, this court's obligation is to assess the nature and extent of any sanctions, disciplines, burdens or obligations that may have been imposed him, separate and apart from the prospect of criminal penalties he might receive in the event of a successful prosecution on the pending larceny and conspiracy charges. Significantly, despite the defendant's valiant argument to the contrary, the mature constitutional cases clearly indicate that the court must focus upon the objective nature and extent of such sanctions, not upon the identity or office of the personage who imposed the sanctions.
The court's summary review begins with Hickam, which considered whether an administrative sanction, such as loss of driving privileges in connection with a related arrest for driving under the influence, would implicate double jeopardy principles sufficiently to bar criminal prosecution for those related charges. In addressing this issue, the Hickam court interpreted the federal double jeopardy analysis and precedent set forth in United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989); the Connecticut Supreme Court used the Halper analysis as the basis for its 1996 opinion that in Connecticut "a civil or administrative sanction that serves a legitimate remedial purpose and is related rationally to that purpose does not give rise to a double jeopardy violation even if the sanction has some deterrent effect." (Emphasis added.) State v. Hickam, 235 Conn. 623.
In Halper, the defendant was criminally convicted of submitting 65 false claims for Medicare benefits in violation of the federal criminal false-claims statute, sentenced to prison, and fined $5,000. Thereafter, he was sanctioned under the federal civil False Claims Act for the same conduct as that which led to his underlying criminal penalties. There, in a pre- Hudson v. United States analysis, where the civil sanctions totaled more than $130,000, the Supreme Court found that this civil fine had no relation to the government's actual financial loss. Therefore, under the facts of that case, the imposition of such a civil sanction implicated the multiple punishment prong for double jeopardy purposes. See United States v. Halper, supra. As discussed herein, however, the Halper result would not likely survive today using the requisite, contemporary Hudson v. United States assessment.
United State v. Halper "held that the imposition of a civil penalty following a criminal prosecution constitutes multiple punishment for the same offense if the civil penalty bears no rational relation to the goal of compensating the Government for its loss, but rather appears to qualify as punishment in the plain meaning of the word . . ." (Internal quotation marks omitted; footnote omitted.) State v. Duke, 48 Conn.App. 71, 74, 708 A.2d 583 (1998). State v. Duke cogently noted that "[the United States] Supreme Court subsequently rejected any notion that Halper stands for the proposition that a civil sanction must be deemed to be punitive unless it is `solely remedial' United States v. Ursery, 518 U.S. 267, 116 S.Ct. 2135, 2145 n. 2, 135 L.Ed. 459 (1996)." (Footnote omitted.) State v. Duke, supra, 28 Conn.App. 75-76.
Following the publication of State v. Hickam, this area of double jeopardy jurisprudence was refined by the United States Supreme Court through the opinion in Hudson v. United States, 522 U.S. 93, 98-99, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997). In Hudson, the federal government administratively imposed monetary sanctions for violations of federal banking statutes, and the defendants were later criminally indicted for essentially the same conduct. The Hudson analysis adopted by the Supreme Court stands for the rather broad proposition that constitutional protection against prosecution is applicable only in cases where a defendant has been exposed to repeated criminal punishments; under Hudson, such protection does not apply to the defendant who has been subjected to civil punishment succeeded by criminal penalty, nor to a defendant who has been subjected to criminal sanction followed by the imposition of civil-based burdens. Id., 522 U.S. 99.
The rule of Hudson v. United States was subsequently adopted and interpreted by our Appellate Court in State v. Duke, 48 Conn.App. 71, 73-77, 708 A.2d 583 (1998). That case considered whether a healthcare professional could be subject to both administrative sanctions (loss of the license to practice in his profession) as the result of illegal acts, while also being subject to criminal prosecution (charges of sexual assault) for those acts. In denying Duke's double jeopardy motion to dismiss, the Appellate Court analyzed Hudson's effect on the current state of constitutional jurisprudence. Completing such analysis, the court overturned the Halper/Hickam approach in favor of an analysis earlier set forth in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963). Connecticut expressly adopted the Hudson approach, "holding that the criminal prosecution of the defendant [Duke] would not violate double jeopardy" because, under the facts of that case, the "legislature intended the administrative sanctions imposed upon the defendant to be civil in nature. Furthermore, the sanctions serve a legitimate remedial purpose . . . restrict[ing] his actions so as to protect other patients in situations similar to that of the alleged victim." State v. Duke, supra, 48 Conn.App. 77. Moreover, in applying the Hudson analysis and legal standards in State v. Duke, the Appellate Court found that even in the context of a case involving the apparent loss of an individual's license to practice as a healthcare professional, with the concomitant loss of financial, social, and personal perquisites attendant such practice, "there [was] little, if any evidence, let alone the required `clearest proof,' that the civil sanctions imposed on the defendant [were] so punitive in form and effect as to render them criminal despite our legislature's clear intent to the contrary." State v. Duke, 48 Conn.App. 78.
Specifically, State v. Duke involved a licensed respiratory therapist who had been charged with sexual assault in the second degree in connection with misconduct for which he also received administrative sanctions for by the State Department of Health. The Duke defendant claimed that the administrative sanctions, which had been set by the legislature, constituted "punishment" for double jeopardy purposes. See generally State v. Duke, supra, 48 Conn.App. 73-77.
The sweeping effect of Hudson overruling Halper is curbed by the Court's re-approval of the 1963 Kennedy v. Mendoza-Martinez analysis. Kennedy v. Mendoza-Martinez provided an attractive, albeit wide-ranging, set of criteria that courts may use to ascertain whether a sanction is punitive or remedial in nature, such as: "whether (1) it involves an affirmative disability or restraint, (2) it has historically been regarded as a punishment, (3) it comes into play only on a finding of scienter, (4) its operation will promote the traditional aims of punishment, i.e., retribution and deterrence, (5) the behavior to which it applies is already a crime, (6) an alternative purpose to which it may rationally be connected is assignable for it, and (7) it appears excessive in relation to the alterative purpose assigned." Kennedy v. Mendoza-Martinez, supra, 372 U.S. 168-69, cited in State v. Duke, supra, 48 Conn.App. 75.
Significantly for the present case, the Duke court adopted the Hudson approach and rejected any predicate proposition that to avoid implicating the double jeopardy clause, an administratively-imposed "sanction must be solely remedial (i.e., entirely nondeterrent) . . . because this stricture "has proved unworkable." State v. Duke, supra, 48 Conn.App. 77. In reaching this conclusion, Duke specifically reasoned that "[t]he analysis applied by the Halper Court deviated from our traditional double jeopardy doctrine in two key respects. First, the Halper Court bypassed the threshold question: whether the successive punishment at issue is a `criminal' punishment . . . The second significant departure in Halper was the Court's decision to `asses[s] the character of the actual sanctions imposed' . . . rather than, as [ Kennedy] demanded, evaluating the `statute on its face' to determine whether it provided for what amounted to a criminal sanction . . . We believe that Halper's deviation from longstanding double jeopardy principles was ill considered . . . We have since recognized that all civil penalties have some deterrent effect . . . If a sanction must be `solely remedial (i.e., entirely nondeterrent) to avoid implicating the Double Jeopardy Clause, then no civil penalties are beyond the scope of the Clause." (Citations omitted.) State v. Duke, supra, 48 Conn.App. 76.
Application of the salient and current Duke double jeopardy principles to the present case leads to the ineluctable conclusion that even though the sanctions imposed by the Governor's Office may have had a punitive effect does not, in and of itself, resolve the question of whether the sanction should be deemed so criminal in nature as to bar the pending larceny and conspiracy prosecutions. Even adopting the defendant's vigorous assertion that the sanctions he suffered in the summer of 2004 were unique in nature, that no other Connecticut State Police officer had been subject to the burdensome suspension, negative publicity, and peremptory actions he was forced to endure, "[w]e have long recognized that the Double Jeopardy Clause does not prohibit the imposition of all additional sanctions that could, `in common parlance,' be described as punishment." Hudson v. United States, supra, 98-99. Here, while the defendant's suspension without pay could, in common parlance, be referred to as punishment, the defendant has failed to present any support for the proposition that the sanction was at all criminal in nature.
The state correctly notes that numerous circuits of the federal courts have concluded that when the federal government, acting as an employer, has imposed disciplinary sanctions against its malfeasant employees, such actions do not implicate double jeopardy because they cannot be characterized as criminal. See United States v. Camacho, 413 F.3d 985 (9th Cir. 2005) (applying Hudson, criminal charges not barred where military sanctions first imposed against an employee for the same conduct). Furthermore, at least two Connecticut cases illustrate that it is not "unique" or unusual for law enforcement personnel to be subject to state administrative or employment sanctions while remaining subject to criminal prosecution for the same conduct, just as any other individual would be. See Santana v. Hartford, 94 Conn.App. 445 A.2d (2006) (police officer suspended after acquittal of the criminal charges based on the same conduct), State v. AFSCME, Council 4, Local 387, AFL-CIO, 252 Conn. 467, 747 A.2d 480 (2000) (state corrections officer terminated from his position and also prosecuted for harassment for the same conduct).
The defendant urges the court to distinguish these cases by arguing that he bases his double jeopardy claim not solely upon the fact of his actual suspension or the attendant consequences, but that the court must consider the origin of the administrative sanctions at issue. In this case, the defendant claims that because Connecticut's highest executive authority imposed his sanctions and did so publicly, the state must be barred from bringing forth the criminal prosecutions for the larceny and conspiracy charges at issue. The defendant asserts that his sanctions must be viewed through the lens of the Governor's "intent" to punish him; he further argues that this manifest intent is reflected in the fact that the Governor's retributive and/or retaliatory actions allegedly had a significantly adverse effect upon the defendant's name and reputation in the community. The defendant characterizes this claim as being "unique" in that it is not premised on the legislative intent of any administrative sanction dealing with the objective fact of the discipline to which he was exposed, but rather on the subjective intent of the Governor as she, the ultimate executive, made the decision which allegedly punitively and prosecutorily affected his employment status.
Under current double jeopardy jurisprudence, it is clear that any focus upon any such "executive intent" is unreasonably and unnecessarily divergent from the court's requisite attention to the legislative intent at issue, here to provide clear penalties by way of fines and/or incarceration for criminal conduct. As the state has persuasively argued, the protection of the "double jeopardy clause is not implicated when the government seeks to sanction an employee's malfeasance via both his employment relationship and [by way of prosecution through the criminal justice system]." State's Opposition. The defendant's proposed focus upon any "executive intent" would only answer questions related to whether he was improperly or unlawfully disciplined in the context of his employment status and rights which may have attached when he reverted to the rank of captain. This focus would not, however, answer the critical question for purposes of double jeopardy analysis, to wit, whether the actual form and effect of the discipline was criminal in nature, or whether it was a sanction which even tended to approach that status. Those questions focused on intent and protocol related to the imposition of sanctions upon the defendant may perhaps be addressed in another forum. However, such questions have no bearing on the state's authority to prosecute the defendant for his criminal conduct, notwithstanding the fact that he may have been the subject of inappropriate or inadequate labor or employment protocols.
V. CONCLUDING DOUBLE JEOPARDY ANALYSIS
It is the following issue that must bear the court's scrutiny in resolving the Double Jeopardy Motion to Dismiss: whether the sanction the defendant claims to have suffered can colorably be seen as criminal in nature. Even viewing the motion to dismiss, and the facts as stipulated to by the parties, in a light most favorable to the position espoused by the defendant he has failed to provide any reliable or credible support for the proposition that an objective analysis of the administrative sanctions imposed on the defendant were at all criminal in nature, notwithstanding the role the Governor may have played in imposing his suspension or its sequellae. (Exhibits 3, 4, 10, 11). See generally State v. Hickam, supra, 235 Conn. 614; Hudson v. United States, supra, 522 U.S. 93; State v. Duke, supra, 48 Conn.App. 71.
In reaching its determination that the defendant has failed to establish the threshold tint of colorable double jeopardy, the court has fully considered the facts established for the purposes of this hearing implicating the Kennedy v. Mendoza-Martinez criteria approved in State v. Duke. Under this scrutiny, the arguments set forth in the State's Opposition memorandum must be seen as compelling, overwhelming the contentions submitted through the Double Jeopardy Motion to Dismiss. State v. Duke offers no basis, in law or in fact, for affording a criminal accused the double jeopardy protection based on the identity of the individual imposing the sanction at issue. Rather, the court is compelled to conclude, under the circumstances of this, that although the defendant's public suspension without pay and any related deprivation of labor relations rights may be seen as affirmative disabilities or restraints, these sanctions clearly served an alternative purpose by enabling the promotion of "public confidence and trust in those officers sworn to uphold and enforce the law." State v. Schnittgen, 992 P.2d 500, 509 (Mont. 1996). Historically, suspension from employment has not been regarded as a criminal penalty, even when such suspension is imposed after intentional misconduct, and even when such suspension is levied in an effort to deter others from committing similar acts of misconduct. On balance, the defendant has failed to establish, by any burden of proof, that the Governor's imposition of his public suspension was in any way excessive to any of the alternative purposes for this administrative sanction, as promoted through the State's Opposition memorandum and as submitted through oral argument. See generally Kennedy v. Mendoza-Martinez, supra, 372 U.S. 168-69, cited in State v. Duke, supra, 48 Conn.App. 75.
See footnote 9.
Accordingly, whatever burden the court imposes on the defendant to show that he might prevail with his double jeopardy claim, the court cannot find any support in either our state or federal jurisprudence to continue with a full hearing on the defendant's motion to dismiss. Simply put, the defendant has failed to establish that there is anything more than little, if any, evidence that could possibly be adduced through an evidentiary hearing to establish that the sanctions imposed upon him in July 2004 and the subsequent months were "so punitive in form and effect as to render them criminal." State v. Duke, supra, 48 Conn.App. 78. If the defendant is required to establish by the "clearest proof' that the sanctions imposed during this period were punitive in form and effect, he has shown no ability, whatsoever, to meet that burden. Id.
WHEREFORE, the Defendant's Double Jeopardy Motion to Dismiss submitted under date of March 30, 2006 is hereby DENIED.
To the extent that the defendant has additionally claimed, above and beyond his double jeopardy claim, that he has already been punished for the offenses charged, this decision should not be construed to prejudice his capacity to raise those issues again should he be convicted of any of the charged offenses.