Opinion
No. CV 06 4012236S
August 3, 2007
MEMORANDUM OF DECISION
On May 29, 1998, the plaintiff, Gregory Hogan, was employed by the Connecticut judicial branch as a shift supervisor at the New Haven Detention Center. Because of an incident with a detainee, he was fired by the judicial branch. His termination was upheld in a union-brought arbitration. He also was unsuccessful in a Title VII action brought in the Connecticut federal district court. In 2005, he sued again in federal district court after he was informed that he had been placed on the child abuse registry list of the Department of Children and Families (DCF). A settlement in the district court resulted in the plaintiffs becoming eligible for newly-revised General Statutes § 17a-101k which governs the procedure for adding a name to the registry list, and the plaintiff proceeded within DCF to take advantage of the procedure. On September 18, 2006, a hearing officer for DCF held in a final decision that the abuse incident was substantiated, and that the plaintiff should be placed on the registry list. This appeal followed.
Pursuant to § 17a-101k(d)(3), the hearing officer made the following findings of fact.
1. [The plaintiff] was a shift supervisor employed by the New Haven Detention Center in May 1998.
2. Felix P. was detained in the Center in May 1998. On May 29, 1998, Felix became verbally abusive when he was asked to go to his room for bedtime. [The plaintiff] intervened, and Felix continued his verbal abuse . . . [Felix] was escorted [by the plaintiff] to his room . . . [T]he parties believed the incident had concluded. Approximately thirty-five minutes later . . . Felix [began] banging in his room. Some of the other detainees were shouting out of their rooms, and demanding that they be put in Felix' room . . . [The plaintiff] took the leather restraints and went to Felix' room. [The plaintiff] told Felix that he would not use the leather restraints, but instead was going to place another detainee, Michael C., in Felix' room to counsel him.
3. Michael C. was much larger than Felix, and was known to be a bully.
4. [Another juvenile detention officer] heard [the plaintiff] tell Felix that he would not open the door again, and that Michael would not receive room time if he beat up Felix. Michael was left in the room with Felix, and all of the officers except [one left the floor for a staff meeting. After the meeting . . . Michael was] returned to his own room. When [the plaintiff] inquired about the move, [he was told by the juvenile detention officer] that he could "guarantee" that Felix would no longer be a problem. Felix was quiet for the rest of the evening.
5. Michael C. assaulted Felix after the two were left alone in Felix' room. Two days later, on May 31, 1998, one side of Felix's face was still swollen and somewhat bruised.
6. [A juvenile detention officer] wrote an incident report on May 29, 1998, but did not submit it until Sunday, May 31, 1998.
7. [This juvenile detention officer] and [the plaintiff] had no animosity toward each other, and had a good working relationship.
8. [The supervisor of the Detention Center] . . . spoke separately with Felix and Michael, and also reviewed [the juvenile detention officer's] report. He then interviewed [the plaintiff], who insisted that Michael was placed in the room to counsel Felix. [The superintendent] believed [the plaintiff] and gave him a verbal warning.
9. [DCF] received an anonymous report of abuse or neglect in February 1999, and conducted a four-month investigation into the conduct of both staff and management. [A DCF investigator] interviewed [the plaintiff, Michael, Felix, juvenile detention officers, other children and staff].
* * * * *
12. [The DCF investigator] interviewed [an attorney] who reported concerns about another boy, John R., who had been placed in the facility. The attorney reported that John R. complained to her that [the plaintiff] threatened to put him into a room to beat up another kid. [The attorney] told the investigator that John requested a transfer because he was afraid for his own safety.
13. As a result of the investigation, [DCF] substantiated [the plaintiff) for physical abuse of . . . Felix P . . .
The hearing officer also found that DCF had, prior to the hearing, substantiated [the plaintiff] for physical abuse of Michael S. and Carlos O. and for the physical neglect of Gerald O. The hearing officer concluded, however, that DCF "did not establish that [the plaintiff] physically abused [Michael or Carlos]. There is simply no evidence in the record to support the allegations that [the plaintiff] injured either child . . . These two allegations are both reversed." The hearing officer did not rule on DCF's initial finding as to Gerald and it played no part in the outcome of the hearing.
14. [The plaintiff) was terminated from his employment as a result of the events of May 29, 1998. An arbitration award and two appeals therefrom, affirmed the termination. (Return of Record, ROR, Final Decision, September 18, 2006, pages 2-3.)
The hearing officer concluded that the DCF had met its burden as to the physical abuse of Felix; he had left Michael with Felix and went to a shift meeting at a critical time. There was a chaotic situation in progress. "[The plaintiff's] decision to allow Michael into the room, and then to leave the two unattended in this atmosphere, also supports the Department's decision that [the plaintiff] abused Felix, in that he allowed a non-accidental injury to be inflicted on the child by another."
As to the determination that the plaintiff be placed on the central registry list, the hearing officer stated that a variety of factors governed placement. Ultimately the risk to children was to be considered. The factors included the plaintiff's intent, the severity of the incident, the chronicity (one-time or not), and whether excessive force was used. The hearing officer found that the facts supported finding that the plaintiff intended to use Michael to force Felix into compliance, that he knew or should have known that this would lead to Felix being injured and did result in injury, and that the plaintiff, either consciously or negligently showed a disregard for Felix's well-being. The hearing officer continued: "The evidence supports a finding that this was not an isolated incident, but rather, a pattern of behavior by [the plaintiff] to induce compliance on his unit. Other detainees feared for their own safety as a result of [the plaintiff's] conduct." Therefore, the hearing officer concluded that the plaintiff should be placed on the list. (ROR, final decision, pages 4-6.)
In making this determination, the hearing officer relied upon DCF Policy Manual § 34-2-8.
The plaintiff has raised the following issues on appeal: (1) General Statutes § 17a-101k (as amended by P.A. 05-207), the registry list provision, is unconstitutionally vague, represents an overly-broad delegation to DCF by the legislature, and constitutes a bill of attainder; (2) the substantiation of physical abuse is not supported by substantial evidence; and, (3) placing the plaintiff's name on the registry list is not supported by substantial evidence.
The amendment came about in part as a result of Lovan C. v. Dept. of Children Families, 86 Conn.App. 290, 860 A.2d 1283 (2004), which criticized the prior statute for failing to give the DCF hearing officer the ability to review in totality the circumstances of the alleged abuse.
Turning to the first issue, the plaintiff makes the claim that § 17a-101k violates due process as the statute denies the public adequate warning of what conduct will bring about the sanction of placement on the registry list. The plaintiff has challenged this statute on its face; even with the guidance of the DCF Policy Manual § 34-2-8, the statutory scheme is said to be too vague. On the other hand, "[a] statute is not void for vagueness unless it clearly and equivocally is unconstitutional, making every presumption in favor of its validity." (Internal quotation marks omitted.) Sweetman v. State Elections Enforcement Commission, 249 Conn. 296, 322, 732 A.2d 144 (1999). In addition, "a party is required to demonstrate as a threshold matter that the statute may not be applied constitutionally to the facts of his case." Packer v. Board of Education, 246 Conn. 89, 106, 717 A.2d 117 (1998).
At oral argument, the plaintiff stated that he does not raise the constitutionality or adequacy of the procedural rights, as set forth in § 17a-101k, that DCF must grant to a possible listee. He only challenges the statute and its sanctions on substantive grounds. During the course of this case, the court asked the parties to brief the issue of whether the plaintiff was precluded from making a due process claim in light of the fact that the plaintiff brought a case in the district court, No. 305 CV 948, which was later withdrawn with prejudice on the agreement of DCF to provide the plaintiff with the procedural safeguards of § 17a-101k. Cf. Commission on Human Rights Opportunities v. Torrington, 96 Conn.App. 313, 901 A.2d 46, cert. denied, 280 Conn. 929, 909 A.2d 957 (2006). The court concludes that because the challenge is to the statute on its face, the doctrine of preclusion does not apply to this administrative appeal.
The plaintiff fails to meet his burden of demonstrating that § 17a-101k is overly-broad in all instances. No constitutional violation for vagueness is committed in establishing a process by which a hearing officer might decide that child abuse occurred. Indeed the setting of more precise language in the statute would hinder the agency in its attempt to comply with an individualized assessment of the risk the individual poses to children. See Lovan C. v. Dept. of Children Families, 86 Conn.App. 290, 300, 860 A.2d 1283 (2004): "[t]he hearing officer must assess the reasonableness of . . . the surrounding circumstances . . ."; Teresa T. v. Ragaglia, 272 Conn. 734, 754-55, 865 A.2d 428, cert. denied, 546 U.S. 1063, 126 S.Ct. 799, 163 L.Ed.2d 631 (2005) (emphasizing the weighing and balancing of complex factors in a decision by DCF).
With the procedural safeguards added by P.A. 05-207 and the adoption of the DCF Manual § 34-2-8, the statute meets constitutional standards. "Standards of mathematical precision are neither possible nor desirable in this field; much must be left to the [hearing officer's] experience and judgment." (Internal quotation marks omitted.) State v. Anonymous, 179 Conn. 155, 165, 425 A.2d 939 (1979).
See also Jamison v. Dept. of Social Services, 218 S.W.3d 399 (Mo. 2007) (finding that equivalent Missouri registry list violated due process for its lack of procedural protections).
The case of Doe v. Dept. of Public Safety, 271 F.3d 38 (2d Cir. 2001), relied upon by the plaintiff, has now been overruled by the Supreme Court in Connecticut Dept. of Public Safety v. Doe, 538 U.S. 1, 123 S.Ct. 1160, 155 L.Ed.2d 98 (2003).
In a related argument the plaintiff contends that the legislature has improperly delegated to the DCF, in light of the alleged vagueness of § 17a-101k, the power to commence adding names to a registry list. This contention is answered by the similar response given by Justice Healey in State v. Smith, 183 Conn. 17, 22, 438 A.2d 1165 (1981), a case involving § 53-21, the risk of injury to a minor statute: "The defendant goes on to claim that § 53-21 violates the constitutional guarantee of the separation of powers between the legislative, judicial and executive branches of government . . . He claims that this statute is constitutionally infirm because in it the legislature has delegated its primary responsibility for standard-setting to prosecutors, judges and juries whose `subjective intuition' . . . determines who will be prosecuted and who will be convicted. The defendant argues that because the power of the legislature to delegate its duties is `severely limited' by the constitution, a statute must . . . declare a legislative policy, establish primary standards for carrying it out, or lay down an intelligible principle . . . This claim is not purely one of delegability but incorporates the defendant's earlier argument going to the unconstitutional vagueness of § 53-21. In addressing the specific claims made here by the defendant, we find that § 53-21 is not infirm as contended. It clearly lays down a legislative policy on the subject legislated upon . . . [A]s we have already noted above, the statute gives that fair warning of the conduct proscribed which due process requires of a penal statute . . . Thus, § 53-21 does not contravene the doctrine of separation of powers because it does not represent any delegation of legislative powers as claimed." (Citations omitted; internal quotation marks omitted.) State v. Smith, supra, 183 Conn. 22-23. The legislature, setting forth its concern for children at risk, similarly did not violate the separation of powers doctrine in enacting § 17a-101k, a non-penal statute, not unconstitutionally vague.
The plaintiff made this argument filed with the permission of the court in a supplemental brief, dated June 19, 2007.
The plaintiff argues that General Statutes § 17a-101k, which establishes DCF's central registry of child abusers, is an unconstitutional bill of attainder in violation of article one, § 9, of the United States constitution, in that it provides for a legislative punishment without a full court trial presided over by the judicial branch. This court finds that this argument is without merit for the following reasons.
"Bills of attainder are legislative acts, no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial . . ." (Emphasis added; internal quotation marks omitted.) Morris v. Congdon, 277 Conn. 565, 578, 893 A.2d 413 (2006), citing United States v. Lovett, 328 U.S. 303, 315, 66 S.Ct. 1073, 90 L.Ed. 1252 (1946). In Morris v. Congdon, our Supreme Court reasoned that the proposed legislation in that case did not constitute an unlawful bill of attainder because it was aimed entirely at eliminating a municipal position, which happened to be occupied by the allegedly aggrieved party. Rather than simply excluding the aggrieved party from the position, the proposed legislation sought to exclude everyone from the position. Morris v. Congdon, supra, 277 Conn. 578. "A piece of legislation is not a bill of attainder by virtue of the fact that it burdens a particular individual more than others, even if it was passed with that particular individual in mind. Id. See also Nixon v. Administrator of General Services, 433 U.S. 425, 471-72, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977) (statute applicable to preservation of records of particular president was not bill of attainder, because statute equally applied to records of future presidents); Benjamin v. Bailey, 234 Conn. 455, 480-82, 662 A.2d 1226 (1995) (bill prohibiting sales of firearms from a particular manufacturer was not bill of attainder directed at that particular manufacturer because bill prohibited everyone from selling or possessing those firearms); but see Consolidated Edison Co. of New York, Inc. v. Pataki, 292 F.3d 338, 345-46 (2d Cir.), cert. denied, 537 U.S. 1045, 123 S.Ct. 623, 154 L.Ed.2d 517 (2002) (bill that prevented particular corporation from recouping costs associated with blackout was found to be bill of attainder because bill only applied to that corporation and provided for a legislative punishment).
"By arguing that an individual or defined group is attainted whenever he or it is compelled to bear burdens which the individual or group dislikes, appellant removes the anchor that ties the bill of attainder guarantee to realistic conceptions of classification and punishment. His view would cripple the very process of legislating, for any individual or group that is made the subject of adverse legislation can complain that the lawmakers could and should have defined the relevant affected class at a greater level of generality. Furthermore, every person or group made subject to legislation which he or it finds burdensome may subjectively feel, and can complain, that he or it is being subjected to unwarranted punishment." Nixon v. United States, supra, 433 U.S. 470.
In this particular instance, the statute, § 17a-101k, that was passed by the legislature to establish the central registry, does not refer to any particular group of individuals upon which the burden of appearing on the registry is to fall. The text of the statutes states, in part: "Upon the issuance of a recommended finding that an individual is responsible for abuse or neglect of a child . . . the commissioner shall provide notice of the finding . . . to the individual who is alleged to be responsible for the abuse or neglect." (Emphasis added.) Further reading of the statute does not provide any further specific description of the individuals to whom the statute may apply, other than persons that the department has determined are responsible for abuse or neglect of a child. The court finds that the statute is simply a statute of general application that happens to have an adverse impact on this plaintiff, because he is a member of a very broad group of individuals to whom the department may apply the directives of the statute after a finding of child abuse or neglect.
As discussed above in Morris v. Congdon, supra, 277 Conn. 565, the Supreme Court has found that a statute is not a bill of attainder even when a statute was passed with a particular individual in mind and the statute does have a greater burden on an aggrieved party. This statute, § 17a-101k, has no specific application to a particular individual, was apparently passed with no particular individual in mind, judging from its general application, and does not burden this plaintiff in any way that is more burdensome than to other persons potentially affected by the statute. This court, relying on that holding in Morris v. Congdon, finds that the statute at issue, 17a-101k, is of even a less particularized variety than the statute in question in that ease, and as such, does not meet the United States Supreme Court's definition of what constitutes an unconstitutional bill of attainder.
The court, having determined that the plaintiff has failed to articulate a reason how this particular statute has specific application towards him beyond its general applicability, will not consider the merits of the plaintiff's argument as to whether the statute inflicts legislative punishment without the benefit of a judicial trial by placing the plaintiff on the department's central registry of child abusers. Without a finding that the statute addresses a particular individual or group with any specificity, the court cannot find that the statute constitutes an unconstitutional bill of attainder. Further inquiry by the court is not necessary.
"[E]ven if the specificity element were deemed to be satisfied . . . the Bill of Attainder Clause would not automatically be implicated. Forbidden legislative punishment is not involved merely because [a statute] imposes burdensome consequences. Rather, [a court] must inquire further whether [the legislature] inflicted punishment within the constitutional proscription against bills of attainder." (Emphasis added; internal quotation marks omitted.) Nixon v. United States, supra, 433 U.S. 472-73.
Additionally, because the court has found that the statute is not directed at a particular group or individual so as to constitute a bill of attainder, the court need not address the plaintiff's argument at the administrative appeal hearing on this matter that the statute is a bill of attainder because the "punishment" meted out by statute as a result of a determination following an administrative hearing, rather than a final decision by a court of the judicial branch. See Selective Service System v. Minnesota Public Interest Research Group, 468 U.S. 841, 847 n. 3, 104 S.Ct. 3348, 82 L.Ed.2d 632 (1984) (court noted that while administrative hearing was provided and that decision was subject to judicial review, Congress did not provide a judicial trial for those affected by statute, but court dismissed bill of attainder argument on other grounds).
The plaintiff also claims that substantial evidence in the record does not support the findings of the hearing officer that DCF's charge of physical abuse of Felix P. should be substantiated or that DCF's recommendation that the plaintiff's name be placed on the central registry list should be upheld.
The standard of court review of the plaintiff's claims has been stated as follows.
Judicial review of [an administrative agency's] action is governed by the Uniform Administrative Procedure Act . . . and the scope of that review is very restricted . . . With regard to questions of fact, it is . . . [not] the function of the trial court . . . to retry the case or to substitute its judgment for that of the administrative agency . . . The substantial evidence rule governs judicial review of administrative fact-finding under UAPA . . . Substantial evidence exists if the administrative record affords a substantial basis of fact from which the fact in issue can be reasonably inferred . . . This substantial evidence standard is highly deferential and permits less judicial scrutiny than a clearly erroneous or weight of the evidence standard of review . . . The burden is on the [plaintiff] to demonstrate that the [agency's] factual conclusions were not supported by the weight of substantial evidence on the whole record. (Citations omitted; internal quotation marks omitted).
MacDermid, Inc. v. Dept. of Environmental Protection, 257 Conn. 128, 136-37, 778 A.2d 7 (2001).
These standards were recently reiterated in Office of Consumer Counsel v. Dept. of Public Utility Control, 279 Conn. 584, 592-93, 905 A.2d 1 (2006). The standard of review has been applied to an administrative appeal from a final decision of DCF in Dailey v. Dept. of Children Families, Superior Court, judicial district of New Britain, Docket No. CV 98 0492670S (January 11, 2000, Hartmere, J.). In Dailey, the judge concluded: "[O]n the basis of [the court's] review of the record . . . there is substantial evidence in the record to support the DCF decision. The fact that there is contrary evidence in the record and that the plaintiffs disagree with the weight accorded to the evidence, does not affect the validity of the DCF decision."
The court has reviewed the record and finds substantial evidence to support the hearing officer's conclusion on the substantiation of abuse of Felix. The record is sufficient to show that Felix was not quieting down and that the plaintiff removed Felix' roommate and placed Michael in the room with Felix. The plaintiff intended Michael to intimidate as well as counsel Felix. (ROR, Exhibit 13, Mayo statement). Moreover the plaintiff and the other male guards on the floor left the area to attend a staff meeting. (ROR, transcript, page 20). As a result of the plaintiff's actions, Felix was injured. (ROR, transcript, page 14). The arbitrator, Larry Foy, concluded similarly that this was severe misconduct on the plaintiff's part. (ROR, Exhibit 9, pages 41-42).
The court points out that both the attorney general and the DCF attorney who presented the case to the hearing officer incorrectly argued that level five is the highest level of behavior in detention; rather level one is the highest and level two is second best.
The court has also reviewed the reasons given by the hearing officer for approving the placement of the plaintiff's name on the registry list. There is no question that the record supports several of the factors that the hearing officer considered. According to officer Mayo, Felix was told that he was not going to open the door again and if Michael "beats you up then he just beats you up." (ROR, Exhibit 13.) This supports the hearing officer's reasoning that the plaintiff's actions likely resulted in the child being injured, as well as the hearing officer's conclusion that using one child to discipline another was an intentional or grossly negligent act.
The court cannot, however, agree with the hearing officer that the record supports the conclusion that "this was not an isolated incident." While the hearing officer does not relate what other incidents are relied upon, these appear to arise from the DCF investigator's report about Edward B. and John R. (ROR, transcript pages 18 and 35). Neither of these incidents support a finding that there were additional incidents. The testimony about these incidents relates the children's "understanding" that Hogan had stated his intent of placing one detainee in a room with another. Rather Foy, the arbitrator, sustained the plaintiff's termination, but did not find that the plaintiff incompetently performed his usual duties, or that there were additional incidents. (ROR, exhibit 9, page 54.)
The decision to add a name to the registry list is not for the court to decide. However, the court finds that support for the hearing officer's finding as to the specific "chronicity" factor of the plaintiff's using a child, more than once, to intimidate another is not reflected in the record. Although the court does not conclude that the decision to place the plaintiff's name on the registry constitutes error by the DCF, it is apparent from the record that one of the findings which led to that decision, i.e., the finding of chronicity, is unsupported by evidence in the record. The extent to which this "chronicity factor" influenced the hearing officer's decision to place the plaintiff's name on the registry can be known only by the hearing officer. The case is therefore remanded to the DCF for further consideration of whether the plaintiff's name should appear on the registry list.