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Miller v. Department of Agriculture

Court of Appeals of Connecticut

September 13, 2016


          Argued May 10, 2016

         Appeal from Superior Court, judicial district of New Britain, Schuman, J.

          Frank T. Canace, for the appellant (plaintiff).

          Gail S. Shane, assistant attorney general, with whom, on the brief, was George Jepsen, attorney general, for the appellee (named defendant).

          Scott R. Ouellette, for the appellee (defendant town of Hamden).

          Lavine, Keller and West, Js.


          KELLER, J.

         The plaintiff, Kim Miller, appeals from the judgment of the Superior Court dismissing her appeal from the final decision of the defendant Department of Agriculture (department), [1] to uphold, pursuant to General Statutes § 22-358, two disposal orders of an animal control officer of the town of Hamden to euthanize the plaintiff's two rottweiler dogs after they attacked the victim, Cynthia Reed.[2] The plaintiff argues that the court erred in dismissing her appeal because the Commissioner of the Department of Agriculture (commissioner), prior to adopting the recommendation of the department hearing officer, Bruce Sherman, to affirm the disposal orders, overlooked ‘‘a severe deprivation'' of her rights by the hearing officer. The plaintiff claims that the hearing officer violated her constitutional rights to due process and to confront the witnesses against her, acted arbitrarily and capriciously in rendering his proposed final decision, and made his decision upon unlawful procedure. See General Statutes § 4-183 (j) (3) (Superior Court may overturn administrative decision ‘‘made upon unlawful procedure'').[3]More specifically, the plaintiff claims that the hearing officer: (1) violated her right under the sixth amendment to the United States constitution to confront the witnesses against her when he allowed the statements of Reed and another witness to the attack, Monique Jones, to be admitted as evidence despite the fact that they did not testify and were not available for cross-examination; (2) improperly forced one of the plaintiff's witnesses to leave the hearing before testifying, thereby depriving the plaintiff of due process; (3) issued a proposed final decision that was made upon unlawful procedure because the department lacked written rules of procedure that applied specifically to hearings on dog disposal orders; and (4) acted arbitrarily and capriciously when he ‘‘interjected his opinion'' about a substantive matter while questioning a witness for the plaintiff. We affirm the judgment of the trial court dismissing the plaintiff's appeal.

         The following facts and legal conclusions, as set forth by the commissioner, [4] are relevant to this appeal. On October 16, 2012, Hamden animal control officer Christopher Smith issued disposal orders concerning two dogs owned by the plaintiff. The disposal orders were based upon an October 3, 2012 incident in which Reed sustained bite injuries from the two dogs outside of her residence in Hamden. After the two dogs escaped from their fenced enclosure located at the plaintiff's residence, a witness, Corey Saulsbury, saw the dogs approaching from the street on which the plaintiff resided and making a ‘‘beeline'' toward a little girl, Reed's granddaughter, who began crying and screaming. The dogs first jumped on Reed's granddaughter and pawed her. Once Reed exited her upstairs apartment on the building's exterior stairs and came down to see what was happening to her granddaughter, the dogs jumped on her, bit her, pulled her, and dragged her from the stairs, eventually dragging her across the curb, grass, driveway, and sidewalk. Saulsbury observed the dogs ‘‘pulling off chunks of [Reed's] neck and her back.'' At this point, Reed was on Saulsbury's automobile asking for help as the dogs pulled and bit her. Saulsbury attempted to use his automobile to hit the dogs in order to halt the attack. Later, two male bystanders retrieved a baseball bat and a pole and struck the dogs until they stopped attacking Reed and ran away. After the attack, there was blood on the driver's side window of Saulsbury's automobile, where Reed had approached in an attempt to obtain assistance. The dogs were later located at the plaintiff's residence and a fourteen day quarantine order was issued for them. After conducting an investigation, in which he concluded that Reed did not strike the dogs at all, Smith issued disposal orders.

         Reed's injuries required on site treatment by emergency medical personnel and transport to a hospital in New Haven for further treatment for dog bite injuries to her head, the back of her neck, and her back. Reed remained hospitalized until her release on October 5, 2012.

         The commissioner concluded in relevant part as follows: ‘‘Because the dogs did not merely bite and release [Reed] after their physical contact with her, but continued to attack and bite her until they were physically beaten or removed from her body, it is not difficult to conclude that the injuries to [Reed] could have been even worse if these citizens did not risk their own welfare to come to her aid. The evidence in the record establishes that the attack and dog bite involving [the two dogs] that occurred on October 3, 2012, was a dangerous incident, impacting public safety.

         ‘‘There was no evidence in the record to support the assertion that [Reed] somehow provoked the attack.[5]Instead, the record supports the fact that when [Reed] came down the stairs of her residence, apparently in response to the screams of her granddaughter . . . the dogs surprised [Reed] and she tried to retreat. [The dogs] immediately attacked, bit, and dragged [Reed], and [she] sustained injuries from the dog bites that required her to be transported by ambulance to a hospital for treatment for these injuries. [Reed] was admitted to the hospital for treatment from these injuries. There is substantial evidence in the record to support the notion that the attack and dog bites to [Reed] were severe.[6] There is, however, no magic to the word ‘severe.' The record establishes that the attack and dog bites to [Reed] could alternatively have been called or deemed serious, or vicious, or aggressive, or any number of other adjectives. There is certainly ‘a substantial basis of fact from which the fact in issue can be reasonably inferred' . . . . The point is that the nature of the attack and dog bites to [Reed] by [the dogs] and her resulting injuries were significant enough to justify issuance of the disposal orders, or stated alternatively, the disposal orders were appropriately ‘deemed necessary' by the [t]own of Hamden [a]nimal [c]ontrol [o]fficer.'' (Citation omitted; footnotes added.)

         After the issuance of the disposal orders pursuant to § 22-358, [7] the plaintiff appealed to the commissioner. Thereafter, a notice of hearing was provided to the parties by certified mail, which provided the time and location of the appeal and the commissioner's authority for the hearing under § 22-358 (c) in accordance with the Uniform Administrative Procedure Act (UAPA); General Statutes § 4-166 et seq.; and the department rules of practice, §§ 22-7-20 through 22-7-38 of the Regulations of Connecticut State Agencies. The applicable regulations and a copy of the department's order of procedure[8] were provided to the parties' attorneys, along with a copy of the notice of hearing. The department appointed a hearing officer, Sherman, and convened a formal administrative hearing to determine whether the orders should stand. The hearing was held and concluded in its entirety on October 23, 2013, before the hearing officer. The hearing officer issued a proposed final decision recommending affirmance of Smith's two orders. After reviewing the entire record, hearing oral argument from the parties, and considering the plaintiff's brief in response to the hearing officer's proposed final decision, the commissioner issued a final decision affirming the two disposal orders. The plaintiff appealed to the trial court, which rejected the first, second, and fourth claims she raises on appeal to this court. The trial court found ‘‘ample evidence to support the conclusion that the bites were severe and that disposal was an appropriate remedy, '' and dismissed the plaintiff's appeal. This appeal followed. Additional facts will be set forth as necessary.


         The plaintiff first claims that her right under the sixth amendment to the United States constitution to confront the witnesses against her was violated when the statements of Reed and Jones were admitted as evidence by the hearing officer, despite the fact that these two witnesses did not testify and were not available for cross-examination.[9] Specifically, the plaintiff argues that the administrative hearing was ‘‘quasi-criminal'' in nature, and, as such, the right to cross-examine one's accusers attaches. Therefore, according to the plaintiff, ‘‘the [commissioner] should not be able to rely on or use any statements, allegations, conclusions, etc., by Reed or Jones in [his final] decision as neither was . . . present for cross-examination.'' We do not agree.

         The following additional facts are relevant to this issue. At the proceeding before the hearing officer, the town of Hamden submitted as evidence statements made to the police by Reed and Jones, as well as police reports containing references to statements made by Reed and Jones about the dogs' attack.[10] Over the plaintiff's objections that such evidence was inadmissible hearsay because neither Reed nor Jones was present at the hearing, [11] the hearing officer admitted the evidence on the ground that hearsay is admissible in administrative hearings. On appeal, the trial court, Schuman, J., concluded that the sixth amendment to the federal constitution was not implicated because the proceeding was not quasi-criminal in nature, and that the statements were properly admitted as reliable and probative hearsay evidence.

         Our analysis begins by setting forth the applicable standard of review. ‘‘Our standard of review of administrative agency rulings is well established. . . . Judicial review of an administrative decision is a creature of statute . . . and [§ 4-183 (j)] permits modification or reversal of an agency's decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) [i]n violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error or law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.'' (Citations omitted; internal quotation marks omitted.) Tele Tech of Connecticut Corp. v. Dept. of Public Utility Control, 270 Conn. 778, 787, 855 A.2d 174 (2004).

         Under the UAPA, the scope of our review of an administrative agency's decision is ‘‘very restricted.'' (Internal quotation marks omitted.) MacDermid, Inc. v. Dept. of Environmental Protection, 257 Conn. 128, 136, 778 A.2d 7 (2001). ‘‘[R]eview of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency's findings of basic fact and whether the conclusions drawn from those facts are reasonable. . . . Neither [the appellate] court nor the trial court may retry the case or substitute its own judgment for that of the administrative agency on the weight of the evidence or questions of fact. . . . Our ultimate duty is to determine, in view of all the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily, illegally or in abuse of its discretion.''[12](Internal quotation marks omitted.) Okeke v. Commissioner of Public Health, 304 Conn. 317, 324, 39 A.3d 1095 (2012). ‘‘We have stated that not all procedural irregularities require a reviewing court to set aside an administrative decision . . . . The complaining party has the burden of demonstrating that its substantial rights were prejudiced by the error.'' (Citation omitted; internal quotation marks omitted.) Tele Tech of Connecticut Corp. v. Dept. of Public Utility Control, supra, 270 Conn. 787-88. ‘‘It is fundamental that a plaintiff has the burden of proving that the [agency], on the facts before [it], acted contrary to law and in abuse of [its] discretion . . . .'' (Internal quotation marks omitted.) Murphy v. Commissioner of Motor Vehicles, 254 Conn. 333, 343-44, 757 A.2d 561 (2000).

         ‘‘In addition, although we have noted that [a]n agency's factual and discretionary determinations are to be accorded considerable weight by the courts . . . we have maintained that [c]ases that present pure questions of law . . . invoke a broader standard of review than is ordinarily involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion.'' (Citation omitted; internal quotation marks omitted.) Tele Tech of Connecticut Corp. v. Dept. of Public Utility Control, supra, 270 Conn. 788. The plaintiff's constitutional claims are therefore entitled to plenary review. See Fairwind CT, Inc. v. Connecticut Siting Council, 313 Conn. 669, 711, 99 A.3d 1038 (2014).

         In administrative proceedings under the UAPA, evidence is not inadmissible solely because it constitutes hearsay. See, e.g., Gagliardi v. Commissioner of Children & Families, 155 Conn.App. 610, 620, 110 A.3d 512, cert. denied, 316 Conn. 917, 113 A.3d 70 (2015); see also Roy v. Commissioner of Motor Vehicles, 67 Conn.App. 394, 397, 786 A.2d 1279 (2001) (‘‘[a]dministrative tribunals are not strictly bound by the rules of evidence . . . so long as the evidence is reliable and probative'' [internal quotation marks omitted]). Additionally, a party to an administrative proceeding under the UAPA is not required to call any particular witness.[13]Therefore, the UAPA did not bar admission of and the commissioner did not err in considering the statements of Reed and Jones, the victim of the attack and an eyewitness to it, which the commissioner found to be ‘‘reliable and probative.''[14] We thus turn to the plaintiff's constitutional claim.

         The sixth amendment to the United States constitution provides in relevant part that ‘‘[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . .'' (Emphasis added.) The right to confrontation guaranteed by this provision is thus expressly limited to criminal proceedings. It is well established in the case law that ‘‘[t]he sixth amendment relates to a prosecution of an accused person which is technically criminal in its nature.'' United States v. Zucker, 161 U.S. 475, 481, 16 S.Ct. 641, 40 L.Ed. 777 (1896); see also Austin v. United States, 509 U.S. 602, 608 and n.4, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993) (‘‘The protections provided by the Sixth Amendment are explicitly confined to ‘criminal prosecutions.' As a general matter, th[e] Court's decisions applying constitutional protections to civil forfeiture proceedings have adhered to th[e] distinction between provisions that are limited to criminal proceedings and provisions that are not. Thus, the Court has held that the Fourth Amendment's protection against unreasonable searches and seizures applies in forfeiture proceedings . . . but that the Sixth Amendment's Confrontation Clause does not . . . .'' [Citations omitted.]); United States v. Ward, 448 U.S. 242, 248, 100 S.Ct. 2636, 65 L.Ed.2d 742 (1980) (‘‘The distinction between a civil penalty and a criminal penalty is of some constitutional import. The Self-Incrimination Clause of the Fifth Amendment, for example, is expressly limited to ‘any criminal case.' Similarly, the protections provided by the Sixth Amendment are available only in ‘criminal prosecutions.' Other constitutional protections, while not explicitly limited to one context or the other, have been so limited by decision of this Court.''); Hannah v. Larche, 363 U.S. 420, 440 n.16, 80 S.Ct. 1502, 4 L.Ed.2d 1307 (1960) (‘‘[The Sixth] Amendment is specifically limited to ‘criminal prosecutions, ' and the proceedings of the Commission [on Civil Rights] clearly do not fall within that category.''). Our Supreme Court and this court have held likewise. See State v. Anonymous, 179 Conn. 155, 159, 425 A.2d 939 (1979) (‘‘[t]he right to effective assistance of counsel . . . is grounded in the sixth amendment to the United States constitution, which is expressly limited to a defendant in a criminal action''); see also In re Noel M., 23 Conn.App. 410, 420-21, 580 A.2d 996 (1990) (concluding that confrontation rights under sixth amendment ‘‘cannot logically be extended to . . . [parental] neglect hearing'').

         An appeal of a disposal order for a biting animal pursuant to § 22-358 (c) is not a criminal prosecution.[15]The issuance of a disposal order under § 22-358 (c) does not, by itself, trigger the imposition of a fine or prison term on the owner.[16] Rather, by obviating the threat that dangerous animals pose to the public, the provision is remedial and civil in nature.

         The plaintiff nonetheless argues that ‘‘[s]ince the seizure and subsequent [disposal] orders [concerning her dogs] were the result of an arrest of [the plaintiff], the proceedings to determine whether [the dogs] should be destroyed were quasi-criminal, and, therefore, [the plaintiff's] constitutional rights, including her sixth amendment right to confrontation, should have been observed and protected.'' There are several problems with this argument. First, the record does not reveal an arrest of the plaintiff.[17] The record does reveal, however, that the town of Hamden issued infractions against the plaintiff for nuisance under General Statutes § 22-363, [18]and intentional or reckless release of a domestic animal that causes damage under General Statutes § 22-364a.[19]In Connecticut, however, an infraction is not a crime. See State v. Caracoglia, 134 Conn.App. 175, 187, 38 A.3d 235 (2012) (‘‘An infraction is not defined as a crime or criminal prosecution by the applicable General Statutes. [General Statutes §] 53a-24 [a] provides that ‘the term crime comprises felonies and misdemeanors.' An infraction is neither.''). Second, even if the plaintiff were charged with a criminal offense as a result of the biting incident, such prosecution does not automatically render criminal in nature any civil actions arising from the same incident. See United States v. Ursery, 518 U.S. 267, 292, 116 S.Ct. 2135, 135 L.Ed.2d 549 (1996) (‘‘[i]t is well settled that Congress may impose both a criminal and a civil sanction in respect to the same act or omission'' [internal quotation marks omitted]); see also State v. Burnell, 290 Conn. 634, 641-42, 966 A.2d 168 (2009) (administrative license revocation proceeding and criminal prosecution arising out of same offense did not violate federal or state double jeopardy clauses).

         Finally, with respect to the plaintiff's claim that she was deprived of her right to confront Reed and Jones, we note that the plaintiff was free to subpoena both witnesses to compel their attendance at the hearing, or, in the alternative, to request that the hearing be held open in order to afford her more time to prepare such subpoenas or to submit a request to file late any affidavits refuting their testimony. The record does not disclose that the plaintiff attempted to pursue any of these options.

         We conclude that the hearing officer's admission of the hearsay statements of Reed and Jones did not violate the sixth amendment to the United States constitution and that these statements were therefore properly considered by the commissioner prior to issuing his final decision.


         The plaintiff next contends that the commissioner erred in failing to find that the hearing officer improperly forced one of her witnesses to leave the hearing before testifying.[20] Specifically, the plaintiff claims that ‘‘a witness essential to the matter, with facts surrounding the incident . . . was forced to leave the hearing despite a medical condition that was the reason for her behavior.'' This claim is wholly without merit.

         The following additional facts are pertinent to this issue. The record discloses that the hearing officer twice admonished Satanya Hudson, a friend of the plaintiff, for creating some sort of disturbance in the hearing room.[21] The precise nature of the disturbance is not apparent on the record. It further appears that Hudson later left the hearing room to tend to a medical condition and never returned.[22] The commissioner found that the hearing officer did not request, require, or force Hudson to leave the hearing, but merely asked that she not be disruptive, and that Hudson did not state or reveal that a medical condition caused her to be disruptive. He further found that it was not the hearing officer's responsibility to ascertain whether counsel for the plaintiff wanted to call Hudson to testify. On appeal, the trial court concluded that there was nothing in the record to support the plaintiff's claim ...

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