Miller v. Dep't of Agric.

KIM MILLER v. DEPARTMENT OF AGRICULTURE ET AL.

AC 37527

COURT OF APPEALS OF THE STATE OF CONNECTICUT

Argued May 10, 2016

September 13, 2016

Lavine, Keller and West, Js.

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

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

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

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

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

After the issuance of the disposal orders pursuant to § 22-358,⁷ the plaintiff appealed to the commissioner. Thereafter, a notice of hearing was provided to the parties by certified mail, which provided the time and location of the appeal and the commissioner's authority for the hearing under § 22-358 (c) in accordance with the Uniform Administrative Procedure Act (UAPA); General Statutes § 4-166 et seq.; and the department rules of practice, §§ 22-7-20 through 22-7-38 of the Regulations of Connecticut State Agencies. The applicable regulations and a copy of the department's order of procedure⁸ were provided to the parties' attorneys, along with a copy of the notice of hearing. The department appointed a hearing officer, Sherman, and convened a formal administrative hearing to determine whether the orders should stand. The hearing was held and concluded in its entirety on October 23, 2013, before the hearing officer. The hearing officer issued a proposed final decision recommending affirmance of Smith's two orders. After reviewing the entire record, hearing oral argument from the parties, and considering the plaintiff's brief in response to the hearing officer's proposed final decision, the commissioner issued a final decision affirming the two disposal orders. The plaintiff appealed to the trial court, which rejected the first, second, and fourth claims she raises on appeal to this court. The trial court found "ample evidence to support the conclusion that the bites were severe and that disposal was an appropriate remedy," and dismissed the plaintiff's appeal. This appeal followed. Additional facts will be set forth as necessary.

I

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

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

Our analysis begins by setting forth the applicable standard of review....