State v. Foster ( 2023 )

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STATE v. FOSTER—CONCURRENCE
SEELEY, J., concurring. I agree with my colleagues
that the judgment of the trial court granting the petition
to continue the commitment of the acquittee, Franklin
Foster, to the jurisdiction of the Psychiatric Security
Review Board (board) should be affirmed.1 I join part
I of the majority opinion and its conclusion that the
court properly found that the state had proven, by clear
and convincing evidence, that the acquittee suffered
from a mental illness resulting in his being a danger to
himself or others. With respect to the acquittee’s claim
that General Statutes § 17a-593 (c),2 as applied to him,
violated his right to equal protection guaranteed by
the federal constitution,3 I am not persuaded that the
acquittee is not similarly situated to civilly committed
inmates.4 Instead, I follow the well traveled analytical
path established by prior decisions of our Supreme
Court and this court and assume, without deciding, that
the acquittee is similarly situated to civilly committed
inmates for purposes of the equal protection analysis.
I further conclude that rational basis review, not inter-
mediate scrutiny, applies and that the acquittee failed
to challenge the constitutionality of § 17a-593 (c) pursu-
ant to this standard of review. Accordingly, the
acquittee has not established that the court improperly
denied his equal protection claim. I therefore respect-
fully concur in the judgment.
I begin by setting forth the background of the
acquittee’s constitutional claim. ‘‘[T]he concept of equal
protection [under both the state and federal constitu-
tions] has been traditionally viewed as requiring the
uniform treatment of persons standing in the same rela-
tion to the governmental action questioned or chal-
lenged. . . . Conversely, the equal protection clause
places no restrictions on the state’s authority to treat
dissimilar persons in a dissimilar manner. . . . Thus,
[t]o implicate the equal protection [clause] . . . it is
necessary that the state statute . . . in question, either
on its face or in practice, treat persons standing in the
same relation to it differently. . . . [Accordingly], the
analytical predicate [of an equal protection claim] is
a determination of who are the persons [purporting
to be] similarly situated. . . . The similarly situated
inquiry focuses on whether the [plaintiff is] similarly
situated to another group for purposes of the challenged
government action. . . . Thus, [t]his initial inquiry is
not whether persons are similarly situated for all pur-
poses, but whether they are similarly situated for pur-
poses of the law challenged.’’ (Citations omitted;
emphasis added; internal quotation marks omitted.)
Kerrigan v. Commissioner of Public Health, 289 Conn.
135, 157–58, 957 A.2d 407 (2008); see also In re Taijha
H.-B., 333 Conn. 297, 312–13, 216 A.3d 601 (2019). If
the court determines that the two groups are similarly
situated, it then must apply the appropriate standard of
review; rational basis,5 intermediate scrutiny,6 or strict
scrutiny;7 to determine whether the challenged statute
is constitutional. State v. Dyous, 307 Conn. 299, 316–18,
53 A.3d 153 (2012).
As noted by the majority, the acquittee, in his motion
to dismiss the state’s petition for continued commit-
ment, argued that the recommitment procedure applica-
ble to acquittees violated his right to equal protection.
The trial court denied the acquittee’s motion to dismiss
but did not address specifically whether the two classes
were similarly situated. It also rejected the acquittee’s
assertion that intermediate scrutiny was the applicable
standard for his claim. On appeal, the acquittee chal-
lenged, inter alia, ‘‘whether applying § 17a-593, authoriz-
ing continued commitment, to [the acquittee’s] unique
factual and legal posture, passes constitutional muster
for federal equal protection purposes.’’ Specifically, the
acquittee contends that he was on conditional release
for eighteen months, when a similarly situated class of
civilly committed inmates would have been released by
operation of law.8 With regard to the initial determina-
tion of whether acquittees who have reached the maxi-
mum term of commitment are similarly situated to civ-
illy committed inmates, the acquittee argues that these
two groups have common features that render them
similar with respect to § 17a-593 and that a prudent
person would deem them to be roughly equivalent.
Finally, the acquittee claims that intermediate scrutiny,
not rational basis review, is the appropriate standard,
and that, under intermediate scrutiny, the mandates of
§ 17a-593, as applied to him, do not bear a substantial
relationship to an important government interest.
The state counters, inter alia, that the two groups
are not similarly situated. Specifically, it contends that,
although ‘‘acquittees and [civilly committed inmates]
share similarities, because there is a direct nexus
between acquittees’ crimes and their mental illness, and
because [acquittees] affirmatively proved not only that
they were mentally ill but also that they were unable
to understand their own criminality or control their
behavior, acquittees are not similarly situated to [civilly
committed inmates]. As such, the acquittee cannot sat-
isfy the threshold determination underlying his equal
protection claim.’’ In his reply brief, the acquittee
responds that acquittees and civilly committed inmates
are similarly situated because (1) both groups have been
subjected to involuntary commitment, a deprivation of
liberty, (2) the purpose of the commitment is to treat
the individual’s mental illness and to protect the individ-
ual and society from his or her potential dangerousness,
and (3) both groups have committed a crime beyond a
reasonable doubt.
The majority, although acknowledging that this issue
is ‘‘not necessarily clear cut,’’ accepts the state’s argu-
ment that the acquittee is not similarly situated to civilly
committed inmates. Herein lies my point of deviation
from the approach taken by my colleagues. Neither
party has persuaded me regarding the initial determina-
tion of whether the two groups are similarly situated.
Therefore, my approach to resolving the present appeal
is to bypass this threshold question for equal protection
claims and to follow the analytical path established by
several decisions from both our Supreme Court and
this court and assume, without deciding, that acquittees
are similarly situated to civilly committed inmates.
Next, I conclude that, pursuant to the binding precedent
of our Supreme Court in State v. Long, 268 Conn. 508,
540, 847 A.2d 862 (Long I), cert. denied, 543 U.S. 969,
125 S. Ct. 424, 160 L. Ed. 2d 340 (2004), rational basis
review applies to the acquittee’s equal protection claim.
As a result of the acquittee’s failure to adequately brief
§ 17a-593 (c) under that standard of review, his equal
protection claim fails.
Our Supreme Court often has commenced an equal
protection analysis ‘‘by [a]ssuming arguendo that the
two categories of defendants identified by the
[acquittee] are similarly situated with respect to the
[statutory scheme] . . . .’’ (Internal quotation marks
omitted.) State v. Wright, 246 Conn. 132, 143, 716 A.2d
870 (1998). More specifically, in equal protection chal-
lenges to § 17a-593, the appellate courts of this state
repeatedly and consistently have assumed, without
deciding, that acquittees are similarly situated to other
groups of persons suffering from mental illness. See,
e.g., State v. Dyous, supra, 307 Conn. 316; State v. Long,
301 Conn. 216, 233 n.17, 19 A.3d 1242, cert. denied, 565
U.S. 1084, 132 S. Ct. 827, 181 L. Ed. 2d 535 (2011); State
v. Long, supra, 268 Conn. 535; State v. Lindo, 110 Conn.
App. 418, 426, 955 A.2d 576, cert. denied, 289 Conn. 948,
960 A.2d 1038 (2008).
Next, I note our Supreme Court’s observation that,
‘‘[a]s a matter of federal law, [i]t is clear that commit-
ment for any purpose constitutes a significant depriva-
tion of liberty . . . . The United States Supreme Court
has recognized involuntary commitment to a mental
institution, in particular, as involving more than a loss of
freedom from confinement . . . due to its stigmatizing
consequences, and the potential exposure to invasive,
compulsory medical and psychiatric treatment.’’ (Cita-
tions omitted; internal quotation marks omitted.) State
v. Metz, 230 Conn. 400, 412–13, 645 A.2d 965 (1994);
see also State v. Long, supra, 301 Conn. 238; S. Caspar &
A. Joukov, ‘‘Worse than Punishment: How the Involun-
tary Commitment of Persons with Mental Illness Vio-
lates the United States Constitution,’’ 47 Hastings Const.
L.Q. 499, 532 (2020); A. Tsesis, ‘‘Due Process in Civil
Commitments,’’ 68 Wash. & Lee L. Rev. 253, 260 (2011).
Our appellate courts have considered equal protec-
tion claims to § 17a-593 on several occasions. In State
v. Long, supra, 268 Conn. 510, the acquittee challenged
the constitutionality of statutory procedures pertaining
to the recommitment of acquittees past the initial term
of their commitment if the discharge would constitute
a danger to an acquittee or to others. In Long I, the
acquittee had been found not guilty by reason of mental
disease or defect pursuant to General Statutes (Rev. to
1985) § 53a-13 (a) of assault in the second degree in
violation of General Statutes (Rev. to 1985) § 53a-60.
Id., 511. The court committed the acquittee to the juris-
diction of the board for a period of five years, which
was equal to the maximum sentence of incarceration
he could have received had he been convicted. Id., 512.
The state successfully moved to extend the period of
commitment on four occasions, resulting in the
acquittee having been in the custody of the board for
more than sixteen years at the time of his appeal. Id.,
513.
At some point in 2001, the acquittee moved to strike
the board’s report to the court recommending his con-
tinued commitment and to dismiss the state’s petition
for recommitment. Id. Although the court initially
denied the acquittee’s motions, it sua sponte reconsid-
ered its ruling and ultimately granted the acquittee’s
motions and vacated its order of commitment. Id., 513–
14. The trial court concluded, inter alia, that § 17a-593
(c) violated the acquittee’s federal constitutional right
to equal protection ‘‘because [§ 17a-593 (c)] treats
acquittees . . . differently from . . . civilly commit-
ted inmates . . . .’’ Id., 514.9
Our Supreme Court disagreed with the trial court
and explained that, because a rational basis existed for
treating acquittees differently from civilly committed
inmates, the acquittee’s equal protection claim failed.
Id., 516–17. In its analysis, the court assumed, ‘‘without
deciding, that acquittees are similarly situated to civilly
committed inmates.’’ Id., 535. Next, the court expressly
held that § 17a-593 (c) neither affected a suspect group
nor implicated a fundamental right, and, therefore,
rational basis review applied. Id. Finally, the court iden-
tified two plausible policy reasons that supported the
legislature’s different treatment of acquittees and civilly
committed inmates. Id., 536. ‘‘First, under the acquittee
statutory scheme, the board has general and specific
familiarity with all acquittees beginning with their initial
commitment and, therefore, is better equipped than
courts to monitor their commitment. By placing over-
sight of these individuals in a single administrative
agency, such as the board, which is comprised of layper-
sons and experts in relevant areas, including psychiatry,
psychology, probation, and victim advocacy, the legisla-
ture reasonably could have believed that the board,
with its expertise and familiarity with the mental status
of each acquittee, would be better equipped than a court
to monitor the individuals’ recommitment. This furthers
the legislature’s legitimate interest in efficiently manag-
ing the recommitment of acquittees.’’ Id.
‘‘Second, the state clearly has an interest in ensuring
that its citizens are not erroneously committed based on
harmless, idiosyncratic behavior. . . . The legislature,
however, reasonably could have concluded that the risk
of erroneous commitment is far less for an acquittee
and, therefore, additional mandatory judicial review
during the recommitment is unnecessary. Specifically,
the legislature could have determined that the likeli-
hood of an erroneous commitment is reduced in the
case of an acquittee because an acquittee initiates the
commitment process himself by pleading and proving
the mental illness that led to his commission of a crime.’’
(Citation omitted.) Id., 536–37. The court concluded
that rational bases existed for the different treatment
of acquittees and civilly committed inmates, and, there-
fore, the acquittee’s right to equal protection was not
violated. Id., 537.
In State v. Lindo, supra, 110 Conn. App. 420, the
acquittee, during his commitment, pleaded guilty to
stabbing a staff member and was sentenced to a period
of two years of incarceration. He was transferred to a
correctional institution to serve his sentence, and, dur-
ing his incarceration, his commitment was extended
for a period not to exceed five years. Id., 420–21. On
appeal, the acquittee argued that ‘‘§ 17a-593 (c), as
applied to him, violated his right to equal protection
because at the time of the recommitment hearing . . .
he was an inmate and therefore should have been
afforded the more stringent procedural protections
applicable when the state seeks to commit mentally
ill prisoners pursuant to General Statutes § 17a-515.’’
Id., 422.
This court noted that, in essence, the acquittee pre-
sented two claims. Id., 423. First, he argued that he was
a mentally ill prisoner, rather than an acquittee, at the
time of the recommitment hearing, and, as such, civil
commitment statutes should have been applied to him.
Id. Second, the acquittee contended that, even if he
were an acquittee, he was similarly situated to mentally
ill prisoners and had been treated in a manner different
from that group when § 17a-593 (c) was applied to him
instead of the civil commitment statutes applicable to
mentally ill prisoners. Id. We rejected the acquittee’s
first claim, concluding that, pursuant to General Stat-
utes § 17a-582 (h), an acquittee remains under the juris-
diction of the board until discharged. Id., 424. As to his
second claim, this court assumed, without deciding,
that acquittees were similarly situated to civilly commit-
ted inmates. Id., 426. Applying the reasoning set forth
in State v. Long, supra, 268 Conn. 537, we concluded
that ‘‘there are rational bases that justify the disparate
treatment afforded acquittees as compared with that
afforded mentally ill prisoners,’’ and, thus, his equal
protection claim failed. State v. Lindo, supra, 110 Conn.
App. 426–27.
In State v. Dyous, supra, 307 Conn. 301–302, our
Supreme Court considered whether the disparities in
the procedures for extending an acquittee’s term of
commitment as compared to the procedures for
extending a civilly committed inmate violated the fed-
eral equal protection clause.10 The defendant argued
that intermediate scrutiny applied to his equal protec-
tion claim. Id., 303. Our Supreme Court concluded that
it need not determine whether acquittees were similarly
situated to civilly committed inmates or the appropriate
standard of review because it agreed with the state
that ‘‘§ 17a-593 would withstand intermediate scrutiny
if such scrutiny were warranted.’’ Id.
In its analysis, the court first recited the standards
for determining if two groups were similarly situated
for equal protection purposes: ‘‘[T]he concept of equal
protection [under the federal constitution] has been
traditionally viewed as requiring the uniform treatment
of persons standing in the same relation to the govern-
mental action questioned or challenged. . . . Con-
versely, the equal protection clause places no restric-
tions on the state’s authority to treat dissimilar persons
in a dissimilar manner. . . . [Accordingly], the analyti-
cal predicate [of an equal protection claim] is a determi-
nation of who are the persons [purporting to be] simi-
larly situated. . . . The similarly situated inquiry
focuses on whether the [challenger is] similarly situated
to another group for purposes of the challenged govern-
ment action. . . . Thus, [t]his initial inquiry is not
whether persons are similarly situated for all purposes,
but whether they are similarly situated for purposes of
the law challenged. . . . Entities are situated similarly
in all relevant aspects if a prudent person, looking objec-
tively at the incidents, would [deem] them roughly
equivalent and the protagonists similarly situated. Much
as in the lawyer’s art of distinguishing cases, the rele-
vant aspects are those factual elements which deter-
mine whether reasoned analogy supports, or demands,
a like result. Exact correlation is neither likely nor nec-
essary, but the cases must be fair congeners. In other
words, apples should be compared to apples.’’ (Citation
omitted; internal quotation marks omitted.) Id., 315–16.
The defendant asserted that both acquittees and civ-
illy committed inmates had been proven guilty beyond
a reasonable doubt to have engaged in criminal conduct,
were currently mentally ill, required treatment, and pre-
sented a potential danger to society. Id., 316. The court
acknowledged that the state’s contention that the two
groups were not similarly situated because only
acquittees were mentally ill at the time of the criminal
conduct and had engaged in such conduct because of
their mental illness had ‘‘some persuasive force . . . .’’
Id. It also rejected the conclusion of the concurring
opinion that acquittees and civilly committed inmates
are not similarly situated, by stating that the initial
inquiry of similarly situated was not ‘‘nearly so clear
cut in light of the important features that the two
groups have in common.’’ (Emphasis added.) Id., 316
n.11. Ultimately, the court assumed, without deciding,
that the groups were similarly situated. Id., 316.
With respect to the issue of the standard of review,
our Supreme Court noted that the defendant argued
that intermediate scrutiny applied because the recom-
mitment of an acquittee constituted a ‘‘massive cur-
tailment of . . . liberty’’; (internal quotation marks
omitted) id., 318; and that two decisions11 of the United
States Court of Appeals for the Second Circuit had
applied that standard in reviewing a New York statute.
Id., 318–20. Although inclined ‘‘to agree with the defen-
dant that the balance of persuasive authority favors
applying intermediate scrutiny to § 17a-593,’’ the court
ultimately concluded that it need not identify the proper
standard of review because the statute withstood inter-
mediate scrutiny.12 Id., 321–22.
Prior to applying intermediate scrutiny, our Supreme
Court first noted the different statutory goals of the
protection of society with respect to General Statutes
(Rev. to 2011) § 17a-593 (g) and consideration of the
least restrictive placement with respect to General Stat-
utes § 17a-498 (c). Id., 323. Next, the court explained
that the board, an administrative body composed of
individuals from various disciplines and whose purpose
is ‘‘to manage, monitor and review the status of each
acquittee to ensure the protection of the general pub-
lic,’’ has no civil counterpart. (Internal quotation marks
omitted.) Id., 324. These disparities served to tip the
balance in favor of confinement with respect to
acquittees and in favor of protecting the individual lib-
erty of civilly committed inmates. Id., 325.
The court then noted the important government inter-
ests of protecting society and affording proper psychia-
tric treatment to acquittees. Id., 326. It also determined
that the recommitment procedure substantially related
to the goal of protecting society. Id., 327. As the court
explained: ‘‘[S]omeone whose mental illness was suffi-
cient to lead him to commit a dangerous crime, and
whose mental illness demonstrably has persisted
despite years of intensive treatment, is someone whose
prospective release raises a special concern for public
safety. That concern plainly is not present to the same
degree in the case of a civilly committed inmate, a
person who (1) might not have been mentally ill when
he committed his crime, (2) might not suffer from a
long-standing mental illness that has persisted despite
years of intensive treatment, and (3) was not legally
adjudicated to have committed a crime as a result of
his mental illness.’’ (Internal quotation marks omitted.)
Id., 329. The court also concluded that a logical connec-
tion existed between this special concern and the
recommitment procedure and that this procedure did
not impose too great a burden on the individual liberty
of acquittees. Id., 332–33.13
Decisions from the United States Supreme Court have
suggested strongly that acquittees are similarly situated
to civilly committed inmates.14 For example, in Bax-
strom v. Herold, 383 U.S. 107, 108, 86 S. Ct. 760, 15 L.
Ed. 2d 620 (1966), the petitioner was sentenced to a
period of incarceration, during which a prison physician
certified him as insane. He then was transferred to
a facility for the purpose of confining and caring for
mentally ill prisoners. Id. The director of this facility
filed a petition stating that the petitioner’s sentence
was about to terminate and requested that he be civilly
committed pursuant to New York law. Id. On the date
that the petitioner’s period of incarceration ended, cus-
tody over him shifted from the Department of Correc-
tion to the Department of Mental Hygiene, although he
remained confined in the same facility for mentally ill
prisoners. Id., 109. The United States Supreme Court
held that the petitioner ‘‘was denied equal protection
of the laws by the statutory procedure under which a
person may be civilly committed at the expiration of
his penal sentence without the jury review available
to all other persons civilly committed in New York.
Petitioner was further denied equal protection of the
laws by his civil commitment to an institution main-
tained by the Department of Correction beyond the
expiration of his prison term without a judicial determi-
nation that he is dangerously mentally ill such as that
afforded to all so committed except those . . . nearing
the expiration of a penal sentence.’’ Id., 110.
The Supreme Court rejected the respondent’s argu-
ment that those individuals nearing the end of their
criminal sentence who might be mentally ill and in need
of being civilly committed were not similarly situated
to those not nearing the end of a prison term. Id., 111–12.
‘‘Equal protection does not require that all persons be
dealt with identically, but it does require that a distinc-
tion made have some relevance to the purpose for which
the classification is made.’’ Id., 111. The court also
rejected the respondent’s argument that persons such
as the petitioner had proven criminal tendencies as
shown by their convictions. Id., 114. ‘‘Where the [s]tate
has provided for a judicial proceeding to determine the
dangerous propensities of all others civilly committed
to an institution of the Department of Correction, it
may not deny this right to a person in [the petitioner’s]
position solely on the ground that he was nearing the
expiration of a prison term. . . . All others receive a
judicial hearing on this issue [of whether the petitioner
was presently mentally ill and posed such a danger to
others as to warrant confinement in Department of
Correction facility]. Equal protection demands that [the
petitioner] receive the same.’’ (Footnote omitted.) Id.,114–15.
In Jackson v. Indiana, 406 U.S. 715, 717, 92 S. Ct.
1845, 32 L. Ed. 2d 435 (1972), the petitioner, a ‘‘deaf
mute with a mental level of a pre-school child,’’ was
charged with two separate robberies. He was deter-
mined to be incompetent to stand trial and the trial
court committed him to the Indiana Department of Men-
tal Health until his competency was restored. Id., 719.
The petitioner’s counsel moved for a new trial, arguing
that the court’s order amounted to the imposition of a
life sentence without ever being convicted of a crime. Id.On appeal to the United States Supreme Court, the
petitioner claimed that he had been denied equal protec-
tion because, in the absence of the criminal charges
pending against him, the state would have been required
to utilize ‘‘either the commitment procedures for feeble-
minded persons, or those for mentally ill persons.’’ Id.,
723. The petitioner argued that ‘‘under [the] statutes
[that provided for such commitment procedures] (1)
the decision whether to commit would have been made
according to a different standard, (2) if commitment
were warranted, applicable standards for release would
have been more lenient, (3) if committed under [one
of the statutes], he could have been assigned to a special
institution affording appropriate care, and (4) he would
then have been entitled to certain privileges not now
available to him.’’ Id.The Supreme Court first reviewed its decision in Bax-
strom v. Herold, supra, 383 U.S. 107, and noted that, if
a criminal conviction and the imposition of a sentence
were insufficient to justify less substantive and proce-
dural protections against indefinite commitment than
those generally available, the filing of criminal charges
also could not suffice. Jackson v. Indiana, supra, 406
U.S. 724. It expressly noted that the ‘‘Baxstrom princi-
ple also has been extended to commitment following an
insanity acquittal . . . .’’ (Citations omitted; emphasis
added.) Id., 724–25.15 Later, it explained that Baxstrom
‘‘held that the [s]tate cannot withhold from a few the
procedural protections or the substantive requirements
for commitment that are available to all others.’’ Id.,
727; see, e.g., B. Wendzel, note, ‘‘Not Guilty, Yet Continu-
ously Confined: Reforming the Insanity Defense,’’ 57
Am. Crim. L. Rev. 391, 397–98 (2020) (discussing ‘‘Bax-
strom-Jackson equal protection doctrine’’). Ultimately,
the court concluded that subjecting the acquittee ‘‘to
a more lenient commitment standard and to a more
stringent standard of release than those generally appli-
cable to all others not charged with offenses . . .
deprived [him] of equal protection of the laws under the
[f]ourteenth [a]mendment.’’ Jackson v. Indiana, supra,
730; cf. Jones v. United States, 463 U.S. 354, 368–70,
103 S. Ct. 3043, 77 L. Ed. 2d 694 (1983) (noting that
purpose of commitment following insanity acquittal is
treatment and protection of society, not punishment
of acquittee, in contrast to sentence of incarceration,
which is based on considerations such as retribution,
deterrence and rehabilitation, and no correlation exists
between severity of offense and length of time neces-
sary for recovery of acquittee; therefore, due process
clause permits government to confine acquittee to men-
tal institution until such time as he or she has regained
sanity or is no longer danger to himself or herself or
society).16 As demonstrated by these cases, the issue
of whether acquittees are similarly situated to civilly
committed inmates presents a complicated inquiry that
courts often bypass in order to address the merits of
an equal protection claim.
The state argues that the existence of a nexus
between the acquittee’s mental illness and his criminal
conduct, and the requirement that an acquittee affirma-
tively prove the defense of not guilty by reason of mental
disease or defect, establishes that he is not similarly
situated to civilly committed inmates. These arguments,
although not without some persuasive force, do not
convince me that we should reach a conclusive determi-
nation regarding this issue. Given the existing case law
from both our state and federal courts, and my concern
for the rights of individuals such as the acquittee, who
has been committed to the custody of the board since
April 2, 2003, approximately twenty years, which is
twice as long as his ten year maximum period of incar-
ceration,17 I would follow the lead of our Supreme Court,
and a panel of this court, and continue to assume, with-
out deciding, that the acquittee is similarly situated to
civilly committed inmates to consider the merits of his
equal protection claim.
With respect to the applicable standard of review,
‘‘[i]t is axiomatic that, as an intermediate appellate tri-
bunal, this court is not free to depart from or modify
the precedent of our Supreme Court.’’ Davis v. Davis-
Henriques, 163 Conn. App. 301, 312, 135 A.3d 1247(2016); see also State v. Gonzalez, 214 Conn. App. 511,
522–23 n.10, 281 A.3d 501 (This court noted: ‘‘[W]e are
not at liberty to overrule or discard the decisions of
our Supreme Court but are bound by them. . . . [I]t is
not within our province to reevaluate or replace those
decisions.’’ (Internal quotation marks omitted.)), cert.
denied, 345 Conn. 967, 285 A.3d 736 (2022). In State v.
Long, supra, 268 Conn. 535, our Supreme Court
expressly held that rational basis review applied to an
equal protection challenge to § 17a-593 (c). See also
State v. Long, supra, 301 Conn. 243 (issue of whether
intermediate scrutiny applies to equal protection chal-
lenge to § 17a-593 (c) may be revisited at some point).
Furthermore, it is well established that ‘‘one panel
of this court cannot overrule the precedent established
by a previous panel’s holding. . . . As we have often
stated, this court’s policy dictates that one panel should
not, on its own, [overrule] the ruling of a previous panel.
[That] may be accomplished only if the appeal is heard
en banc. . . . Prudence, then, dictates that this panel
decline to revisit such requests.’’ (Internal quotation
marks omitted.) State v. Gonzalez, supra, 214 Conn.
App. 524. In State v. Lindo, supra, 110 Conn. App. 425,
this court specifically rejected the claim that intermedi-
ate scrutiny applied to an equal protection challenge
to § 17a-593 (c).18 Our precedent makes clear that § 17a-
593 (c) must be analyzed under rational basis review.
The acquittee argues in his appellate brief that the
court erred in refusing to apply intermediate scrutiny to
the acquittee’s claim of disparate treatment in statutory
recommitment procedures for acquittees as compared
to civilly committed inmates. He then provides a lengthy
analysis that focuses on whether the relevant statutory
framework passes constitutional muster under the lens
of intermediate scrutiny. I am not persuaded by the
acquittee’s efforts to distinguish the present case from
State v. Long, supra, 268 Conn. 535–36. Instead, I am
bound to apply rational basis review to the acquittee’s
claim of disparate treatment in statutory recommitment
procedures for acquittees as compared to civilly com-
mitted inmates. An intermediate court must follow the
precedent of our Supreme Court, which presently
requires § 17a-593 (c), for purposes of a federal equal
protection challenge, to be ‘‘analyzed under rational
basis review.’’ State v. Long, supra, 268 Conn. 535.19
The acquittee, however, has failed to adequately brief
the claim that his right to equal protection had been
violated under rational basis review. As noted, his appel-
late brief focuses on why § 17a-593 (c), as applied to
him, does not survive intermediate scrutiny. There is,
however, no cogent analysis or discussion of whether
§ 17a-593 (c) passes review under the rational basis
standard. ‘‘[W]e are not required to review claims that
are inadequately briefed. . . . We consistently have
held that [a]nalysis, rather than mere abstract assertion,
is required in order to avoid abandoning an issue by
failure to brief the issue properly. . . . [F]or this court
judiciously and efficiently to consider claims of error
raised on appeal . . . the parties must clearly and fully
set forth their arguments in their briefs. We do not
reverse the judgment of a trial court on the basis of
challenges to its rulings that have not been adequately
briefed. . . . The parties may not merely cite a legal
principle without analyzing the relationship between
the facts of the case and the law cited. . . . It is not
enough merely to mention a possible argument in the
most skeletal way, leaving the court to do counsel’s
work, create the ossature for the argument, and put
flesh on its bones.’’ (Internal quotation marks omitted.)
State v. Fetscher, 162 Conn. App. 145, 155–56, 130 A.3d
892 (2015), cert. denied, 321 Conn. 904, 138 A.3d 280(2016). As a result, his equal protection claim raised
before this court must fail.
For the foregoing reasons, I respectfully concur.
1
After an acquittee has proven the defense of mental disease or defect,
he or she may be committed to the jurisdiction of the board for a maximum
term of commitment not to exceed the maximum sentence that could have
been imposed had that individual been convicted. See General Statutes
§ 17a-582; see also State v. Long, 268 Conn. 508, 519, 847 A.2d 862, cert.
denied, 543 U.S. 969, 125 S. Ct. 424, 160 L. Ed. 2d 340 (2004). The board is
an administrative body consisting of six members, a psychiatrist, a psycholo-
gist, a probation expert, a layperson, an attorney who is a member of the
state bar, and a layperson with experience in victim advocacy. General
Statutes § 17a-581 (b). ‘‘The purpose of the board is to manage, monitor
and review the status of each acquittee to ensure the protection of the
general public.’’ State v. Long, supra, 520; see also General Statutes § 17a-
584. The state may file a petition to extend the maximum term of commitment
if reasonable cause exists to believe that the acquittee remains a person
with psychiatric disabilities and would constitute a danger to others or
himself or herself. State v. Long, supra, 520; see also General Statutes § 17a-
593 (c).
2
General Statutes § 17a-593 (c) provides: ‘‘If reasonable cause exists to
believe that the acquittee remains a person with psychiatric disabilities or
a person with intellectual disability to the extent that his discharge at the
expiration of his maximum term of commitment would constitute a danger
to himself or others, the state’s attorney, at least one hundred thirty-five
days prior to such expiration, may petition the court for an order of continued
commitment of the acquittee.’’ See also State v. Dyous, 307 Conn. 299, 307,
53 A.3d 153 (2012).
3
The fourteenth amendment to the United States constitution provides
in relevant part that ‘‘[n]o State shall . . . deny to any person within its
jurisdiction the equal protection of the laws.’’ U.S. Const., amend. XIV, § 1.
4
In his reply brief, the acquittee asserts that he relied on the following
definition of civilly committed inmates from State v. Dyous, 307 Conn. 299,
301, 53 A.3d 153 (2012): ‘‘[M]entally ill, convicted defendants who were
transferred, pursuant to General Statutes §§ 17a-498 and 17a-515, to a psychi-
atric facility while they were serving their sentences, and whom the state
seeks to commit to a similar institution after their sentences end.’’ (Footnote
omitted.) ‘‘[C]ivil commitment generally is an involuntary process, initiated
by someone other than the committee’’ and ‘‘any person may file an applica-
tion for the civil commitment of an individual with the Probate Court . . . .’’
State v. Long, 268 Conn. 508, 528–29, 847 A.2d 862, cert. denied, 543 U.S.
969, 125 S. Ct. 424, 160 L. Ed. 2d 340 (2004); see also General Statutes § 17a-
497 (a). Furthermore, after civil commitment proceedings are commenced,
the individual who is the subject of the proceedings, including an inmate
in the prison system, has a right to a hearing on the merits before the
Probate Court. General Statutes § 17a-498 (a).
General Statutes § 17a-498 (c) (3) provides in relevant part: ‘‘If the [Pro-
bate] [C]ourt finds by clear and convincing evidence that the respondent
has psychiatric disabilities and is dangerous to himself or herself or others
or gravely disabled, the court shall make an order for his or her commitment,
considering whether or not a less restrictive placement is available, to a
hospital for psychiatric disabilities to be named in such order, there to be
confined for the period of the duration of such psychiatric disabilities or
until he or she is discharged or converted to voluntary status pursuant to
section 17a-506 in due course of law. . . .’’
General Statutes § 17a-515 provides: ‘‘The provisions of section 17a-498
shall apply to any person regarding whom proceedings for commitment are
being instituted under section 17a-513 or 17a-514, and to any other person
in the custody of the Commissioner of Correction, except that if the [Probate]
[C]ourt revokes the order of commitment, the person shall be returned
to any institution administered by the Department of Correction as the
Commissioner of Correction shall designate, unless his custody in the Com-
missioner of Correction has terminated, in which case he shall be dis-
charged.’’
5
Rational basis review is the most deferential standard. State v. Dyous,
307 Conn. 299, 317, 53 A.3d 153 (2012). ‘‘[Our Supreme Court] has held, in
accordance with the federal constitutional framework of analysis, that in
areas of social and economic policy that neither proceed along suspect
lines nor infringe fundamental constitutional rights, the [e]qual [p]rotection
[c]lause is satisfied [as] long as there is a plausible policy reason for the
classification . . . the legislative facts on which the classification is appar-
ently based rationally may have been considered to be true by the governmen-
tal decisionmaker . . . and the relationship of the classification to its goal
is not so attenuated as to render the distinction arbitrary or irrational . . . .’’
(Citations omitted; internal quotation marks omitted.) Kerrigan v. Commis-
sioner of Public Health, supra, 289 Conn. 158–59. ‘‘A party challenging a
law under rational basis review bears the burden of proving that the law’s
class-based distinctions are wholly irrational.’’ State v. Dyous, supra, 317.
6
‘‘[F]or purposes of federal equal protection analysis, the United States
Supreme Court also has developed an intermediate level of scrutiny that
lies [b]etween [the] extremes of rational basis review and strict scrutiny.
. . . Intermediate scrutiny typically is used to review laws that employ
quasi-suspect classifications . . . such as gender . . . or [il]legitimacy
. . . . On occasion intermediate scrutiny has been applied to review of a
law that affects an important, though not constitutional, right. . . . Under
intermediate scrutiny, the government must show that the challenged legisla-
tive enactment is substantially related to an important governmental inter-
est.’’ (Citations omitted; internal quotation marks omitted.) Kerrigan v.
Commissioner of Public Health, supra, 289 Conn. 160.
7
‘‘The least deferential standard of review is strict scrutiny, which applies
both to laws that discriminate on the basis of a person’s membership in a
suspect class and to laws that burden a person’s exercise of a fundamental
right.’’ State v. Dyous, 307 Conn. 299, 317, 53 A.3d 153 (2012). ‘‘Under that
heightened standard, the state must demonstrate that the challenged statute
is necessary to the achievement of a compelling state interest.’’ (Internal
quotation marks omitted.) Kerrigan v. Commissioner of Public Health,
supra, 289 Conn. 159.
8
In State v. Dyous, supra, 307 Conn. 301, our Supreme Court explained that
‘‘[t]he procedure for extending an insanity acquittee’s term of commitment
to the [board] imposes greater burdens on individual liberty than does the
civil commitment procedure appliable to civilly committed inmates . . . .’’
(Footnote omitted.) In its opinion, the court reviewed ‘‘the key disparities
between the system applicable to insanity acquittees and the system applica-
ble to civilly committed inmates. These disparities cause the system applica-
ble to insanity acquittees to tilt more strongly toward confinement. In the
most general terms, the system applicable to insanity acquittees, which is
administered by the board and the Superior Court, operates such that its
primary purpose is to protect the public, whereas the system applicable to
civilly committed inmates, which is administered by mental health facilities
and the Probate Court, operates such that a paramount concern is to protect
a defendant’s liberty.
‘‘This difference in fundamental purpose yields specific disparities in
standards, procedures and treatment conditions. Foremost among them is
the fact that the legal standard for recommitting an insanity acquittee to
the jurisdiction of the board is generally interpreted and applied more conser-
vatively than is the legal standard for recommitting a civilly committed
inmate, even though the two standards nominally are identical. This disparity
is on display in the present case, the parties having stipulated at the defen-
dant’s recommitment hearing that, absent objection, the board’s consulting
psychiatrist and the defendant’s retained psychiatrist both would have testi-
fied that the defendant did not meet the standard for involuntary civil
commitment.’’ Id., 322–23.
The court further reasoned that the legislature imposed different mandates
on the two systems. Id., 323. With respect to acquittees, the primary concern
for the board is consideration of public safety. Id. As to civilly committed
inmates, physicians providing opinions to the Probate Court must consider
whether a less restrictive placement should be recommended and is avail-
able. Id.9
The trial court also concluded that the acquittee’s due process rights
under article first, § 8, of the Connecticut constitution had been violated
because § 17a-593 (c) failed to provide him with mandatory periodic judicial
review of confinement. State v. Long, supra, 268 Conn. 514. Our Supreme
Court rejected the trial court’s conclusion and determined that the ‘‘existing
statutory procedures, as applied to the [acquittee], did not expose him to
an unreasonable risk of erroneous deprivation of his liberty.’’ Id., 527. As a
result, the acquittee’s due process rights under our state constitution were
not violated. Id.
10
‘‘Among other disparities between the two commitment schemes, the
procedure for recommitting insanity acquittees directs the finder of fact to
‘[consider] that its primary concern is the protection of society’; General
Statutes [Rev. to 2011] § 17a-593 (g); whereas the procedure for recommitting
civilly committed inmates directs the finder of fact to ‘[consider] whether
. . . a less restrictive placement is available . . . .’ General Statutes § 17a-
498 (c).’’ State v. Dyous, supra, 307 Conn. 301.
General Statutes § 17a-593 (g), pertaining to acquittees, provides: ‘‘The
court shall make a finding as to the mental condition of the acquittee and,
considering that its primary concern is the protection of society and its
secondary concern is the safety and well-being of the acquittee, make one
of the following orders: (1) If the court finds that the acquittee is not a
person who should be discharged, the court shall order the recommendation
or application for discharge be dismissed; or (2) if the court finds that the
acquittee is a person who should be discharged, the court shall order the
acquittee discharged from custody. The court shall send a copy of such
finding and order to the board.’’
I note that, in 2022, the legislature added the phrase ‘‘and its secondary
concern is the safety and well-being of the acquittee’’ to subsection (g) of
§ 17a-593. See Public Acts 2022, No. 22-45, § 5.
General Statutes § 17a-498 (c), pertaining to civilly committed inmates,
provides: ‘‘(1) The court shall require the certificates, signed under penalty
of false statement, of at least two impartial physicians selected by the court,
one of whom shall be a practicing psychiatrist, and each of whom shall be
licensed to practice medicine in the state of Connecticut and shall have
been a practitioner of medicine for at least one year and shall not be
connected with the hospital for psychiatric disabilities to which the applica-
tion is being made, or related by blood or marriage to the applicant, or to
the respondent. Such certificates shall indicate that the physicians have
personally examined the respondent not more than ten days prior to such
hearing. The court shall appoint such physicians from a list of physicians and
psychiatrists provided by the Commissioner of Mental Health and Addiction
Services and such appointments shall be made in accordance with regula-
tions promulgated by the Probate Court Administrator in accordance with
section 45a-77. Each such physician shall make a report on a separate form
provided for that purpose by the Probate Court Administrator and shall
answer such questions as may be set forth on such form as fully and com-
pletely as reasonably possible. Such form shall include, but not be limited
to, questions relating to the specific psychiatric disabilities alleged, whether
or not the respondent is dangerous to himself or herself or others, whether
or not such illness has resulted or will result in serious disruption of the
respondent’s mental and behavioral functioning, whether or not hospital
treatment is both necessary and available, whether or not less restrictive
placement is recommended and available and whether or not the respondent
is incapable of understanding the need to accept the recommended treatment
on a voluntary basis. Each such physician shall state upon the form the
reasons for his or her opinions. Such respondent or his or her counsel shall
have the right to present evidence and cross-examine witnesses who testify
at any hearing on the application. If such respondent notifies the court not
less than three days before the hearing that he or she wishes to cross-
examine the examining physicians, the court shall order such physicians
to appear.
‘‘(2) The court shall cause a recording of the testimony of such hearing
to be made, to be transcribed only in the event of an appeal from the decree
rendered under this section. A copy of such transcript shall be furnished
without charge to any appellant whom the Probate Court finds unable to
pay for such copy. The cost of such transcript shall be paid from funds
appropriated to the Judicial Department.
‘‘(3) If the court finds by clear and convincing evidence that the respondent
has psychiatric disabilities and is dangerous to himself or herself or others
or gravely disabled, the court shall make an order for his or her commitment,
considering whether or not a less restrictive placement is available, to a
hospital for psychiatric disabilities to be named in such order, there to be
confined for the period of the duration of such psychiatric disabilities or
until he or she is discharged or converted to voluntary status pursuant to
section 17a-506 in due course of law. Such court order shall further command
some suitable person to convey such person to such hospital for psychiatric
disabilities and deliver him or her, with a copy of such order and of such
certificates, to the keeper thereof. In appointing a person to execute such
order, the court shall give preference to a near relative or friend of the
person with psychiatric disabilities, so far as the court deems it practicable
and judicious. Notice of any action taken by the court shall be given to the
respondent and his or her attorney, if any, in such manner as the court
concludes would be appropriate under the circumstances.’’
11
See Ernst J. v. Stone, 452 F.3d 186, 200 (2d Cir. 2006); Francis S. v.
Stone, 221 F.3d 100, 111–12 (2d Cir. 2000).
12
The court further noted that, because it did not determine the appro-
priate standard of review, it was unnecessary to consider whether its prior
decision in State v. Long, supra, 268 Conn. 535, in which the court held that
a federal equal protection challenge to § 17a-593 (c) must be analyzed under
rational basis review, would preclude the court from determining that § 17a-
593 (c) actually warrants intermediate scrutiny. State v. Dyous, supra, 307
Conn. 322 n.14.
13
Additionally, our Supreme Court has determined that acquittees are
similarly situated to civilly committed inmates for purposes of paying hospi-
tal expenses. State v. Reed, 192 Conn. 520, 529–30, 473 A.2d 775 (1984). ‘‘The
insanity acquittee does not bear the stigma associated with the conviction
of a crime; he is under the jurisdiction of the [C]ommissioner of [M]ental
[H]ealth rather than the [C]ommissioner of [C]orrection; and, most import-
antly, once his mental condition has improved to the extent, as determined
by the court, that it would no longer be dangerous to release him, he cannot
be denied his freedom. The ordinary prisoner, who is being punished for a
crime, must serve the remainder of his term of imprisonment regardless of
whether treatment for his mental condition has been successful. These
differences, however, have no particular relevance to the propriety of requir-
ing an insanity acquittee to pay for the same services which are provided
to an ordinary prisoner without charge, because they are not related to
comparative financial ability or need for treatment. During his period of
confinement an acquittee has no greater earning capacity than his fellow
hospital inmate temporarily removed from prison for treatment. We are not
aware of any evidence that his financial prospects upon his court sanctioned
release from a mental hospital are any brighter than those of an ordinary
prisoner whose term of imprisonment has expired and who has also been
treated for mental illness. Neither can we perceive any difference in the
relative need for mental treatment between acquittees and other prisoners
who have been transferred to an institution for such treatment. In sum,
both classes of hospital inmates are being deprived of their liberty primarily
for the protection of society; both have the same financial resources; and
both have the same need for treatment.’’ Id.14
One commentator has indicated that ‘‘[w]hether an insanity acquittee’s
equal protection rights have been violated by state commitment proceedings
has never been fully addressed by the [United States] Supreme Court.’’ R.
Dallet, note, ‘‘Foucha v. Louisiana: The Danger of Commitment Based on
Dangerousness,’’ 44 Case W. Res. L. Rev. 157, 163 (1993).
15
See, e.g., United States v. Ecker, 543 F.2d 178, 188 n.34 (D.C. Cir. 1976)
(‘‘we recognize that equal protection requires the standards governing the
release of criminal acquittees, who have been confined for a period equal
to the maximum sentence authorized for their crimes, to be substantially
the same as the standards applicable to civil committees’’), cert. denied,
429 U.S. 1063, 97 S. Ct. 788, 50 L. Ed. 2d 779 (1977); Bolton v. Harris, 395
F.2d 642, 649 (D.C. Cir. 1968) (‘‘[i]t follows that there is no reasonable basis
for distinction for commitment purposes between those who plead insanity
and those who have the defense thrust upon them’’); Cameron v. Mullen,
387 F.2d 193, 201 (D.C. Cir. 1967) (‘‘Baxstrom thus might be said to require
the conclusion that, while prior criminal conduct is relevant to the determina-
tion whether a person is mentally ill and dangerous, it cannot justify denial
of procedural safeguards for that determination’’); People v. Lally, 19 N.Y.2d
27, 35, 224 N.E.2d 87, 277 N.Y.S.2d 654 (1966) (to comply with spirit, if not
express language of Baxstrom, acquittee must be afforded all protections
afforded to civilly committed individuals). Simply stated, it has been recog-
nized that ‘‘after the expiration of the period for which an acquittee might
have been incarcerated had he been convicted, it may be irrational, within
the meaning of equal protection doctrine, to distinguish between an
acquittee and a committee. Acquittees who have been confined for that
period, therefore, may be entitled to treatment no different from that
afforded committees.’’ (Emphasis added.) Waite v. Jacobs, 475 F.2d 392,
395 (D.C. Cir. 1973); see also B. Wendzel, note, ‘‘Not Guilty, Yet Continuously
Confined: Reforming the Insanity Defense,’’ 57 Am. Crim. L. Rev. 391, 404
(2020) (disparity in procedural protections for acquittees as compared to
those for civil commitments is less justifiable once acquittee has ‘‘served
their penal sentence’’).
16
In State v. Dyous, supra, 307 Conn. 316–17 n.11, the majority specifically
distinguished the due process analysis set forth in Jones v. United States,
supra, 463 U.S. 354, from its equal protection analysis. ‘‘The court in Jones
merely determined that the distinctions between the two classes were suffi-
cient to warrant differential treatment . . . the very same conclusion that
we reach in the present case. Moreover, in Jones, the court expressly
observed that its due process analysis was dispositive of the equal protection
claims that the petitioner had raised at an earlier stage of the proceedings,
without suggesting that those claims failed to establish the threshold require-
ment that the classes must be similarly situated. . . . Indeed, with respect
to the one equal protection argument that the petitioner did raise in Jones,
the court addressed and rejected it on the merits, apparently assuming that
the two classes are similarly situated. . . . It may be argued, therefore, that
Jones supports the view that the two classes are similarly situated for equal
protection purposes. We do not believe, however, that Jones sheds any real
light on the issue.’’ (Citations omitted; emphasis altered.) State v. Dyous,
supra, 316–17 n.11.
17
As our Supreme Court has noted, although the purpose of an order of
commitment differs significantly from the imposition of a criminal sentence,
the effect of commitment is no less a deprivation of liberty. Connelly v.
Commissioner of Correction, 258 Conn. 394, 405, 780 A.2d 903 (2001).
18
I note that, in State v. Long, supra, 301 Conn. 235, the acquittee conceded
that rational basis review applied to his federal equal protection claim in
his prior appeal. There was no such concession in State v. Lindo, supra,110 Conn. App. 425.
19
In State v. Dyous, supra, 307 Conn. 322, our Supreme Court indicated that
‘‘the balance of persuasive authority favors applying intermediate scrutiny
to § 17a-593 . . . .’’ Furthermore, the Dyous court signaled that it was criti-
cal of the application of rational basis review in Long I. The court stated:
‘‘Because we do not determine the appropriate standard of review, we need
not consider whether our use of rational basis review in Long I, in which
we stated conclusorily that Ԥ 17a-593 (c) neither affects a suspect group
nor implicates a fundamental right for . . . purposes of the federal equal
protection clause’ and, therefore, ‘must be analyzed under rational basis
review’; State v. Long, supra, 268 Conn. 535; would preclude us from
determining that § 17a-593 actually warrants intermediate scrutiny.’’ State
v. Dyous, supra, 322 n.14.