Miller v. Dept. of Agriculture

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KIM MILLER v. DEPARTMENT
OF AGRICULTURE ET AL.
(AC 37527)
Lavine, Keller and West, Js.
Argued May 10—officially released September 13, 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).
Opinion
KELLER, J. The plaintiff, Kim Miller, appeals from
the judgment of the Superior Court dismissing her
appeal from the final decision of the defendant Depart-
ment 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 depri-
vation’’ of her rights by the hearing officer. The plaintiff
claims that the hearing officer violated her constitu-
tional rights to due process and to confront the wit-
nesses against her, acted arbitrarily and capriciously in
rendering his proposed final decision, and made his
decision upon unlawful procedure. See General Stat-
utes § 4-183 (j) (3) (Superior Court may overturn admin-
istrative decision ‘‘made upon unlawful procedure’’).3
More specifically, the plaintiff claims that the hearing
officer: (1) violated her right under the sixth amend-
ment 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 pro-
posed final decision that was made upon unlawful pro-
cedure because the department lacked written rules of
procedure that applied specifically to hearings on dog
disposal orders; and (4) acted arbitrarily and capri-
ciously when he ‘‘interjected his opinion’’ about a sub-
stantive matter while questioning a witness for the
plaintiff. We affirm the judgment of the trial court dis-
missing 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 Chris-
topher 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 resi-
dence, 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 scream-
ing. 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 ask-
ing 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 Saulsb-
ury’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 onsite treatment by emer-
gency 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 fol-
lows: ‘‘Because the dogs did not merely bite and release
[Reed] after their physical contact with her, but contin-
ued 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 wel-
fare 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 hospi-
tal 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 num-
ber of other adjectives. There is certainly ‘a substantial
basis of fact from which the fact in issue can be reason-
ably 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 issu-
ance 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 Regu-
lations of Connecticut State Agencies. The applicable
regulations and a copy of the department’s order of
procedure8 were provided to the parties’ attorneys,
along with a copy of the notice of hearing. The depart-
ment appointed a hearing officer, Sherman, and con-
vened 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 pro-
posed 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 dis-
posal was an appropriate remedy,’’ and dismissed the
plaintiff’s appeal. This appeal followed. Additional facts
will be set forth as necessary.
I
The plaintiff first claims that her right under the sixth
amendment to the United States constitution to con-
front the witnesses against her was violated when the
statements of Reed and Jones were admitted as evi-
dence 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 plain-
tiff’s objections that such evidence was inadmissible
hearsay because neither Reed nor Jones was present
at the hearing,11 the hearing officer admitted the evi-
dence 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 adminis-
trative 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 admin-
istrative findings, inferences, conclusions, or decisions
are: (1) [i]n violation of constitutional or statutory provi-
sions; (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 charac-
terized by abuse of discretion or clearly unwarranted
exercise of discretion.’’ (Citations omitted; internal quo-
tation 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 admin-
istrative 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 substan-
tial 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. Commis-
sioner 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 Con-
necticut 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 ques-
tions 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.’’ (Cita-
tion omitted; internal quotation marks omitted.) Tele
Tech of Connecticut Corp. v. Dept. of Public Utility
Control, supra, 270 Conn. 788. The plaintiff’s constitu-
tional claims are therefore entitled to plenary review.
See FairwindCT, Inc. v. Connecticut Siting Council,
313 Conn. 669, 711, 99 A.3d 1038 (2014).
In administrative proceedings under the UAPA, evi-
dence is not inadmissible solely because it constitutes
hearsay. See, e.g., Gagliardi v. Commissioner of Chil-
dren & 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]dminis-
trative tribunals are not strictly bound by the rules of
evidence . . . so long as the evidence is reliable and
probative’’ [internal quotation marks omitted]). Addi-
tionally, 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 constitu-
tion 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 guaran-
teed by this provision is thus expressly limited to crimi-
nal 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 ‘crimi-
nal 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 proceed-
ings 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 Con-
frontation 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 constitu-
tional 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 confronta-
tion 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 sei-
zure 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 Stat-
utes. [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 ren-
der 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 omis-
sion’’ [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 affida-
vits refuting their testimony. The record does not dis-
close 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 vio-
late the sixth amendment to the United States constitu-
tion and that these statements were therefore properly
considered by the commissioner prior to issuing his
final decision.
II
The plaintiff next contends that the commissioner
erred in failing to find that the hearing officer improp-
erly 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 sur-
rounding 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 plain-
tiff, 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 that Hudson was
forced out of the hearing room and that, in any event,
the plaintiff failed to establish any prejudice arising
from the episode as no proffer by counsel for the plain-
tiff regarding Hudson’s proposed testimony was ever
made.
The premise of the plaintiff’s claim is belied by the
record, which is simply bereft of any indication that
the hearing officer ‘‘forced [Hudson] to leave and not
testify’’ or that she ‘‘was not allowed back to testify.’’
Notably, at no time during the hearing did the plaintiff
object by claiming that Hudson had been forced to leave
or had not been allowed back to testify. Additionally,
as the commissioner found, ‘‘[t]here was no request
made to the hearing officer to have [Hudson] testify
after a break or recess, there was no request to continue
or hold open the hearing to have [Hudson] testify on
another date, [and] there was no proffer by counsel for
[the plaintiff] regarding the alleged nature of [Hudson’s]
testimony.’’ Further, ‘‘[t]here was no request to file an
affidavit regarding the nature of [Hudson’s] testimony
. . . and no request was made to late file such an
exhibit.’’ Thus, the plaintiff has not demonstrated that
her right to due process of law was violated as a result
of the hearing officer’s verbal exchanges with Hudson.
III
The plaintiff next argues that the proposed final deci-
sion of the hearing officer was made upon unlawful
procedure because the department lacked written pro-
cedures that applied specifically to hearings on dog
disposal orders, thereby depriving the plaintiff of due
process.23 According to the plaintiff, the hearing officer
‘‘rel[ied] solely on the codified sections of the [UAPA]
. . . and the Department of Agriculture’s rules of prac-
tice, both of which are general in nature and apply to
all hearings before the department, and not specifically
to appeals of dog disposal orders.’’ (Emphasis added.)
Thus, the plaintiff asserts, her right to due process was
violated because the hearing officer lacked sufficient
guidance as to how to conduct the administrative hear-
ing. As support for this claim, the plaintiff relies on a
transcript of a status conference in an unrelated case
before the United States District Court for the District
of Connecticut, which the plaintiff claims, shows the
lack ‘‘of any written rules, procedures or guidelines
used by the department . . . as they relate to the
department’s practices and procedures pursuant to
§ 22-358.’’ This claim, including its reference to the
appended transcript, is raised for the first time before
this court. We therefore decline to review it.
‘‘Practice Book § 60-5 provides in relevant part that
[this] court shall not be bound to consider a claim unless
it was distinctly raised at the trial or arose subsequent
to the trial. The court may in the interests of justice
notice plain error not brought to the attention of the trial
court. . . . Indeed, it is the appellant’s responsibility to
present such a claim clearly to the trial court so that
the trial court may consider it and, if it is meritorious,
take appropriate action. That is the basis for the require-
ment that ordinarily [the appellant] must raise in the
trial court the issues that he intends to raise on appeal.
. . . For us [t]o review [a] claim, which has been articu-
lated for the first time on appeal and not before the
trial court, would result in a trial by ambuscade of the
trial judge. . . . We have repeatedly indicated our dis-
favor with the failure, whether because of a mistake of
law, inattention or design, to object to errors occurring
in the course of a trial until it is too late for them to
be corrected, and thereafter, if the outcome of the trial
proves unsatisfactory, with the assignment of such
errors as grounds of appeal. . . . This rule applies to
appeals from administrative proceedings as well.’’ (Cita-
tion omitted; internal quotation marks omitted.) Fer-
raro v. Ridgefield European Motors, Inc., 313 Conn.
735, 758–59, 99 A.3d 1114 (2014); see also Dragan v.
Connecticut Medical Examining Board, 223 Conn. 618,
632, 613 A.2d 739 (1992) (‘‘A party to an administrative
proceeding cannot be allowed to participate fully at
hearings and then, on appeal, raise claims that were
not asserted before the board. We have made it clear
that we will not permit parties to anticipate a favorable
decision, reserving a right to impeach it or set it aside
if it happens to be against them, for a cause which was
well known to them before or during the trial.’’ [Internal
quotation marks omitted.]).
The record reveals that the plaintiff failed to raise
this distinct claim before the hearing officer, the com-
missioner, or the trial court. The plaintiff, however,
appears to argue that because the District Court status
conference on which she relies took place after the
administrative hearing, she is entitled to rely on it in the
present claim. See Practice Book § 60-5. Even assuming,
arguendo, that the status conference transcript sup-
ports the plaintiff’s proposition, the record reflects that
the department informed the plaintiff in a letter prior
to the hearing that ‘‘[the] hearing will be conducted in
accordance with the [UAPA] and the Department of
Agriculture [r]ules of [p]ractice, [s]ections 22-7-20
through 22-7-38 as found in the Regulations of Connecti-
cut State Agencies (enclosed).’’ Thus, the plaintiff had
notice of what procedural rules would—and, import-
antly, would not—be used during the hearing. If, as the
plaintiff asserts, ‘‘there [were] no written guidelines,
rules, or procedures for parties to follow’’ specifically
in administrative hearings on dog disposal orders, such
lack of specific procedures was as apparent before the
hearing as the plaintiff contends it is now. Thus, the
plaintiff’s claim did not ‘‘ar[ise] subsequent to the trial.’’
Practice Book § 60-5. Accordingly, we conclude that
this claim was not preserved and we decline to
review it.24
IV
Finally, the plaintiff argues that the commissioner
erred in finding that the hearing officer did not act
arbitrarily and capriciously when he ‘‘interjected his
opinion’’ about a substantive matter while questioning
a witness for the plaintiff. Because the plaintiff failed
to adequately brief this issue, we decline to review
its merits.
‘‘Whe[n] an issue is merely mentioned, but not briefed
beyond a bare assertion of the claim, it is deemed to
have been waived. . . . In addition, mere conclusory
assertions regarding a claim, with no mention of rele-
vant authority and minimal or no citations from the
record, will not suffice.’’ (Citations omitted; internal
quotation marks omitted.) Connecticut Coalition
Against Millstone v. Connecticut Siting Council, 286
Conn. 57, 87, 942 A.2d 345 (2008).
The plaintiff cites to only one instance of the allegedly
inappropriate interjection of opinion as follows:
‘‘[The Hearing Officer]: So do you think if that bite
to the neck coupled with dragging, dragging the victim,
might be more than just flight?
‘‘[The Witness]: Potentially. But there are a lot of
variables, especially with this case here.
‘‘[The Hearing Officer]: I understand there are a lot
of variables. I was a practicing large animal veterinarian
for eighteen years before I came here, and I saw plenty
of attacks by dogs. And I think that there are a lot of
different opinions on neck bites.’’
The trial court found no merit to this claim, conclud-
ing that ‘‘[a] trial judge, and presumably a hearing offi-
cer, has authority, particularly in a nonjury case, to
question a witness as long as he remains neutral and
does not take over counsel’s role,’’ and further noting
that the hearing officer’s statement was ‘‘essentially
innocuous.’’
The plaintiff’s brief does not explain how the hearing
officer’s statement constitutes error except to say that
it is an example of his ‘‘interject[ing] his opinion rather
than acting as a finder of fact,’’ and that, from what
we can discern from a section heading earlier in the
plaintiff’s appellate brief, it is claimed to be possibly
arbitrary and capricious as well. The plaintiff cites no
legal authority in support of this argument, provides no
further reference to the record, and engages in no fur-
ther analysis. We thus deem this claim abandoned and
decline to review it.
The judgment of the trial court dismissing the plain-
tiff’s appeal is affirmed.
In this opinion the other judges concurred.
1
Because the Commissioner of the Department of Agriculture acts on
behalf of the department, references in this opinion to the department
include the commissioner.
2
The town of Hamden is also a defendant in this appeal and has adopted
the department’s brief in full.
3
Administrative hearings to consider appeals of disposal orders issued
pursuant to § 22-358 (c) are conducted in accordance with the Uniform
Administrative Procedure Act (UAPA); General Statutes § 4-166 et seq.; and
the department rules of practice, specifically, §§ 22-7-20 through 22-7-38 of
the Regulations of Connecticut State Agencies. Pursuant to General Statutes
§ 4-176e, hearings in contested cases in agency proceedings may be con-
ducted before a hearing officer, who, pursuant to General Statutes § 4-
179, renders a written, proposed final decision to the commissioner. After
affording each party adversely affected by the proposed final decision an
opportunity to file exceptions and present briefs and oral argument pursuant
to § 4-179 (a), the commissioner is vested with the authority to render the
final decision in matters involving disposal orders under § 22-358 (c).
4
In his final decision, the commissioner set forth detailed factual findings
of the events underlying this case, many of which were in agreement with
the factual findings contained in the hearing officer’s proposed final decision.
5
Both before and during the hearing, the plaintiff maintained, with varying
degrees of conviction, that it was Reed who incited the attack. In his detailed
factual findings, the commissioner recounted how, following the attack, the
plaintiff ‘‘told [a television reporter] that she blamed the victim for this
incident.’’ Furthermore, the commissioner recounted that ‘‘[a] Facebook
page was established to save [the dogs] and [the plaintiff] testified that she
wrote on that Facebook site, as did the ‘Lexus Project’ [an organization
assisting her]. . . . [The plaintiff] was asked if on that site she wrote, ‘I
can’t believe I have to go through all this because of one deranged woman
[who] decided to attack my bab[ies].’ [The plaintiff] responded, ‘I may have
written some of that. Lexus Project edited some. They were the managers
from that page.’ ’’ (Citation omitted.) Finally, during the hearing, ‘‘[w]hen
asked if [the plaintiff] thought the dog bite attack to [Reed] was [Reed’s]
fault, [the plaintiff] testified that she saw [Reed] being aggressive with her
dogs and that ‘if it had been handled differently, [Reed’s granddaughter]
wasn’t touched at all, because my dogs are not vicious. If they were vicious
they would have bit the little girl and other people, probably. It was only
her. And she was the only one that went after them. And I did see that,
sir.’ ’’ The commissioner found, however, that ‘‘[the plaintiff] did not observe
how the initial attack by [the dogs] on [Reed] occurred.’’
6
The commissioner also took note of the fact that Hamden police officer
Michael Cirillo, who arrived on the scene following the attack, ‘‘[had]
responded to an estimated [forty to sixty] dog bites in his career [and, based
upon his observations] . . . the injuries to [Reed] were the most significant
in terms of injuries he has encountered.’’ (Citation omitted.) Similarly, the
commissioner noted that Smith, who observed Reed’s bandaged injuries
following her discharge from the hospital, ‘‘[had] seen a couple dozen dog
bites in his career as an animal control officer and in terms of injuries to
the victim, this was the most severe.’’ A video depicting Reed’s injuries, also
was submitted in evidence as a full exhibit.
7
General Statutes § 22-358 provides in relevant part: ‘‘(b) Any person who
is bitten, or who shows visible evidence of attack by a dog, cat or other
animal when such person is not upon the premises of the owner or keeper
of such dog, cat or other animal . . . shall make complaint concerning the
circumstances of the attack to the Chief Animal Control Officer, any animal
control officer or the municipal animal control officer or regional animal
control officer of the town wherein such dog, cat or other animal is owned
or kept. Any such officer to whom such complaint is made shall immediately
make an investigation of such complaint. . . .
‘‘(c) If such officer finds that the complainant has been bitten or attacked
by such dog, cat or other animal when the complainant was not upon the
premises of the owner or keeper of such dog, cat or other animal the officer
shall quarantine such dog, cat or other animal in a public pound or order
the owner or keeper to quarantine it in a veterinary hospital, kennel or other
building or enclosure approved by the commissioner for such purpose. . . .
The commissioner, the Chief Animal Control Officer, any animal control
officer, any municipal animal control officer or any regional animal control
officer may make any order concerning the restraint or disposal of any
biting dog, cat or other animal as the commissioner or such officer deems
necessary. . . . Any person aggrieved by an order of any municipal animal
control officer, the Chief Animal Control Officer, any animal control officer
or any regional animal control officer may request a hearing before the
commissioner within fourteen days of the issuance of such order. . . . After
such hearing, the commissioner may affirm, modify or revoke such order
as the commissioner deems proper.’’
8
The order of procedure consisted of: (1) the hearing officer’s opening
remarks; (2) introduction of the hearing participants and witnesses; (3) the
parties’ opening statements; (4) documentary evidence marked for identifica-
tion; (5) the municipality’s case-in-chief, including (a) direct examination
of the witnesses and offering of documentary evidence, (b) cross-examina-
tion by the opposing side, (c) questions from the hearing officer, (d) redirect
examination, (e) recross-examination, if necessary, and (f) questions from
the hearing officer; (6) the animal owner’s case presentation, which would
proceed in the same order as the municipality’s case-in-chief; (7) rebuttal;
(8) the parties’ closing statements; and (9) closure of the hearing.
9
The plaintiff also makes several assertions that are ancillary to her sixth
amendment claim. We dispose of these assertions as follows:
First, as part of her sixth amendment claim, the plaintiff asserts that the
hearing officer violated her right to confrontation under article first, § 8, of
the Connecticut constitution. However, ‘‘[b]ecause the [plaintiff] has not set
forth a separate state constitutional analysis pursuant to State v. Geisler,
222 Conn. 672, 684–86, 610 A.2d 1225 (1992), we deem that claim abandoned,’’
and therefore proceed by evaluating the plaintiff’s confrontation claim under
the sixth amendment to the federal constitution. State v. Benedict, 158 Conn.
App. 599, 604 n.5, 119 A.3d 1245, cert. granted on other grounds, 319 Conn.
924, 125 A.3d 200 (2015).
Second, the plaintiff appears to argue separately that the violation of her
right to confrontation also deprived her of due process under the fourteenth
amendment to the federal constitution, at one point stating that ‘‘the town
of Hamden violated [the plaintiff’s] due process rights to cross-examine.’’
(Emphasis added.) Whether this is a separate constitutional claim, or merely
a recognition that the sixth amendment has been applied to the states
through the due process clause of the fourteenth amendment; see Pointer
v. Texas, 380 U.S. 400, 406, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965); or both,
is not entirely clear. To the extent that the plaintiff relies on the fourteenth
amendment, however, we view that argument, in its essence, to be the
functional equivalent of her sixth amendment claim, and reject it.
Third, the plaintiff adds in passing that, by admitting statements of the
two witnesses as evidence at the hearing when they did not testify, the
hearing officer also violated the plaintiff’s rights under the fifth amendment
to the United States constitution. The plaintiff provides no further elabora-
tion or analysis of this issue. We therefore consider it inadequately briefed
and decline to review it. See Connecticut Coalition Against Millstone v.
Connecticut Siting Council, 286 Conn. 57, 87, 942 A.2d 345 (2008).
10
These items were far from the only sources of information about the
attack. At the hearing, Saulsbury provided detailed eyewitness testimony
about the attack. Furthermore, police officer Michael Cirillo and Smith both
testified about their observations of Reed’s injuries.
11
The commissioner found that the town of Hamden, through Smith,
‘‘attempted to locate [Reed] to come to th[e] administrative hearing by going
to her residence, but she did not appear to be living there, and by calling
her on the phone, but the phone was not in service.’’
12
Our restricted scope of review is further constrained by the fact that
the legislature, by promulgating § 22-358, vested the animal control officer
with broad discretion to make orders that ‘‘such officer deems necessary’’
with respect to ‘‘the restraint or disposal of any biting dog . . . .’’ General
Statutes § 22-358 (c).
13
Of course, if a witness does testify at an administrative proceeding, he
or she is subject to cross-examination. See General Statutes § 4-177c.
14
We note that during the proceedings before the hearing officer, the
plaintiff objected to the statements of Reed and Jones only due to the fact
that neither of them was present. The plaintiff did not argue that their
statements were unreliable or not probative.
15
In so holding, we also conclude that it is immaterial for purposes of
the sixth amendment whether the disposal orders are quasi-criminal or not.
As explained previously in the body of this opinion, it is well established
that confrontation rights under the sixth amendment to the federal constitu-
tion are afforded only to criminal defendants. The cases that the plaintiff
cites are inapposite because they do not involve sixth amendment claims.
Boyd v. United States, 116 U.S. 616, 617–18, 6 S. Ct. 524, 29 L. Ed. 746 (1886),
for instance, involved a proceeding by the United States to execute the
forfeiture of cases of plate glass, which allegedly had been illegally imported
without payment of the customs duty. The Supreme Court held that proceed-
ings instituted for the purpose of declaring the forfeiture of property by
reason of crimes committed by the owner, though civil in form, are quasi-
criminal in nature, and, therefore, under the fourth and fifth amendments,
the owner cannot be compelled to produce documents that justify the forfei-
ture by proving the criminal violation occurred. Id., 634–35. Similarly, in
One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 702, 85 S. Ct.
1246, 14 L. Ed. 2d 170 (1965), the Supreme Court held that the state could
not seize evidence in violation of the fourth amendment for use in a quasi-
criminal forfeiture proceeding intended to penalize the owner of an automo-
bile for the commission of a criminal offense. In that case, police officers
stopped an automobile and searched the rear and trunk without a warrant
and without probable cause, ultimately finding thirty-one cases of liquor not
bearing Pennsylvania tax seals, which constituted a violation of Pennsylvania
law. Id., 694–95. In the present case, by contrast, the animal control officer
was not required to find that the plaintiff violated any criminal law in order
to justify his disposal orders under § 22-358 (c).
16
A municipality may assess on the owner certain fees, including a nominal
‘‘redemption fee’’ for owners claiming a captured or impounded animal, and
a payment representing the cost to the municipality of quarantining a biting
animal. General Statutes § 22-333. These fees, however, merely compensate
a municipality for costs incurred while impounding an animal, and thus
cannot be described as punitive in nature. Compare Black’s Law Dictionary
(7th Ed. 1999) p. 629 (defining ‘‘fee’’ as ‘‘[a] charge for labor or services,
esp. professional services’’), with Black’s Law Dictionary, supra, p. 647
(defining ‘‘fine’’ as ‘‘[a] pecuniary criminal punishment or civil penalty pay-
able to the public treasury’’).
And, although, pursuant to § 22-358 (c), the state may punish an animal
owner with a thirty day prison term and $250 fine for failing to comply with
a quarantine order issued after a biting incident, such criminal penalty is
distinct from a disposal order, and, in any event, is not at issue in this case.
17
At the administrative hearing, the plaintiff’s prior counsel acknowledged
that the plaintiff was not arrested.
18
General Statutes § 22-363 provides: ‘‘No person shall own or harbor a
dog or dogs which is or are a nuisance by reason of vicious disposition
or excessive barking or other disturbance, or, by such barking or other
disturbance, is or are a source of annoyance to any sick person residing in
the immediate vicinity. Violation of any provision of this section shall be
an infraction for the first offense and a class D misdemeanor for each
subsequent offense and the court or judge may make such order concerning
the restraint or disposal of such dog or dogs as may be deemed necessary.’’
19
General Statutes § 22-364a provides: ‘‘Any person who intentionally or
recklessly releases a domestic animal that enters upon the real property of
another person and causes damage to such real property in an amount in
excess of one hundred dollars shall have committed an infraction.’’
20
In a section heading of her appellate brief, the plaintiff also asserts that
this alleged conduct violated her constitutional right—presumably under
the sixth amendment—to call witnesses on her own behalf. Although such
a claim is not adequately presented, we note that our analysis herein would
also govern our analysis of such claim.
21
The exchanges surrounding the disturbance are as follows:
‘‘[The Defendant’s Counsel]: But a witness described the way the dogs
were [attacking], was like an alligator. If somebody described that to you—
‘‘[The Witness]: Yeah, if a dog rolled on its side on a bite, that would be
completely, I have never seen that. I have never—
‘‘[The Defendant’s Counsel]: Ma’am, it has been all day, and—
‘‘[The Hearing Officer]: I’ll step in here too.
‘‘[Hudson]: I am tired. I am sorry.
‘‘[The Defendant’s Counsel]: Yeah, but this started first thing in the
morning.
‘‘[Hudson]: I am sorry.
‘‘[The Defendant’s Counsel]: I understand you may not agree with my
questions, you may not agree with some of the answers, but now it is
getting distracting.
‘‘[Hudson]: I am sorry. I apologize to you, sir.
‘‘[The Hearing Officer]: And if you want to stay in the hearing that is going
to have to stop.
‘‘[Hudson]: No problem.’’
Later, the following exchange occurred:
‘‘[The Hearing Officer]: So, if you had a five year old child or four year
old child out in its yard, these two dogs got loose after you, well let’s say
before you train them. These two dogs got loose, and they, you know, they
travelled a few hundred feet, couple blocks—ma’am, one more time. This
is the second warning.
‘‘[Hudson]: I am not doing anything, sir. I am falling asleep.
‘‘[The Hearing Officer]: As far as I can see, you are.
‘‘[Hudson]: I didn’t do anything—
‘‘[The Hearing Officer]: Well, you know.
‘‘[The Plaintiff]: Satanya—
‘‘[Hudson]: Kim, I didn’t do anything. I rubbed my eye and I went like
this. I am falling asleep.’’
22
We glean this from the following exchange between the hearing officer
and Evan Wilson, who would later testify for the plaintiff:
‘‘[The Hearing Officer]: Excuse me.
‘‘[Wilson]: I apologize. I just need the keys to her truck. Satanya is on
medication and she is having seizures, which is also the reason why she is
having issues.
‘‘[The Hearing Officer]: All right.
‘‘[Wilson]: So I just want to get—
‘‘[The Hearing Officer]: I apologize—
‘‘[Wilson]: No, that’s all right. That’s why I went outside to go check on her.’’
This final exchange is the first time that a reference to Hudson’s medical
condition appears on the record.
23
In her brief, the plaintiff frames this alleged error as arbitrary and
capricious conduct by the hearing officer. In substance, however, this claim
is one of unlawful procedure under § 4-183 (j) (3). Accordingly, we refer to
it as such.
24
In responding to her other claims, the commissioner noted: ‘‘In response
to her brief, [the plaintiff] was provided with sufficient due process in this
administrative proceeding. There was adequate notice of the hearing and
the basis for the hearing. [The plaintiff], through counsel, was given the
opportunity to cross-examine all witnesses produced by the town, to put
on her own witnesses and to submit documentary evidence. . . . There
was no violation of fundamental fairness to [the plaintiff]. In assessing the
common-law right to fundamental fairness, courts review whether there
was due notice of the hearing, that the parties had the right to produce
relevant evidence and that there was the right to cross-examine witnesses
produced by its adversary. . . . Again, in this case, [the plaintiff] had notice
and the opportunity to participate in a fair and impartial administrative
hearing. [The plaintiff] had the opportunity to present all relevant evidence
in this matter. All of the documents presented by [the plaintiff] were accepted
as evidence and made part of the record for the final decision maker’s
consideration. [The plaintiff] had the opportunity to cross-examine all of
the witnesses produced by the town. [The plaintiff] had the opportunity to
call any and all witnesses that she determined to present for testimony
before the hearing officer. [She] was provided with the opportunity to file
exceptions to the proposed final decision and argue them before the final
decision maker at an oral argument prior to the issuance of a final decision.’’
(Citation omitted.)