KELLER, J.
The plaintiff, Kim Miller, appeals from the judgment of the Superior Court dismissing her appeal from the final decision
The following facts and legal conclusions, as set forth by the commissioner,
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.
After the issuance of the disposal orders pursuant to § 22-358,
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.
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.
Our analysis begins by setting forth the applicable standard of review. "Our standard of review of administrative agency rulings is well established.... Judicial review of an administrative decision is a creature of statute ... and [§ 4-183(j)] permits modification or reversal of an agency's decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) [i]n violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error or law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion." (Citations omitted; internal quotation marks omitted.) Tele Tech of Connecticut Corp. v. Dept. of Public Utility Control, 270 Conn. 778, 787, 855 A.2d 174 (2004).
Under the UAPA, the scope of our review of an administrative agency's decision is "very restricted." (Internal quotation marks omitted.) MacDermid, Inc. v. Dept. of Environmental Protection, 257 Conn. 128, 136, 778 A.2d 7 (2001). "[R]eview of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency's findings of basic fact and whether the conclusions drawn from those facts are reasonable.... Neither [the appellate] court nor the trial court may retry the case or substitute its own judgment for that of the administrative agency on the weight of the evidence or questions of fact.... Our ultimate duty is to determine, in view of all the evidence, whether
"In addition, although we have noted that [a]n agency's factual and discretionary determinations are to be accorded considerable weight by the courts ... we have maintained that [c]ases that present pure questions of law ... invoke a broader standard of review than is ordinarily involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion." (Citation omitted; internal quotation marks omitted.) Tele Tech of Connecticut Corp. v. Dept. of Public Utility Control, supra, 270 Conn. at 788, 855 A.2d 174. The plaintiff's constitutional 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, evidence is not inadmissible solely because it constitutes hearsay. See, e.g., Gagliardi v. Commissioner of Children & Families, 155 Conn.App. 610, 620, 110 A.3d 512, cert. denied, 316 Conn. 917, 113 A.3d 70 (2015); see also Roy v. Commissioner of Motor Vehicles, 67 Conn.App. 394, 397, 786 A.2d 1279 (2001) ("[a]dministrative tribunals are not strictly bound by the rules of evidence ... so long as the evidence is reliable and probative" [internal quotation marks omitted]). Additionally, a party to an administrative proceeding under the UAPA is not required to call any particular witness.
The sixth amendment to the United States constitution provides in relevant part that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him ...." (Emphasis added.) The right to confrontation guaranteed by this provision
An appeal of a disposal order for a biting animal pursuant to § 22-358(c) is not a criminal prosecution.
The plaintiff nonetheless argues that "[s]ince the seizure and subsequent [disposal] orders [concerning her dogs] were the result of an arrest of [the plaintiff], the proceedings to determine whether [the dogs] should be destroyed were quasi-criminal, and, therefore, [the plaintiff's] constitutional rights, including her sixth amendment right to confrontation, should have been observed and protected." There are several problems with this argument. First, the record does not reveal an arrest of the plaintiff.
Finally, with respect to the plaintiff's claim that she was deprived of her right to confront Reed and Jones, we note that the plaintiff was free to subpoena both witnesses to compel their attendance at the hearing, or, in the alternative, to request that the hearing be held open in order to afford her more time to prepare such subpoenas or to submit a request to file late any affidavits refuting their testimony. The record does not disclose that the plaintiff attempted to pursue any of these options.
We conclude that the hearing officer's admission of the hearsay statements of Reed and Jones did not violate the sixth amendment to the United States constitution and that these statements were therefore properly considered by the commissioner prior to issuing his final decision.
The plaintiff next contends that the commissioner erred in failing to find that the hearing officer improperly forced one of her witnesses to leave the hearing before testifying.
The following additional facts are pertinent to this issue. The record discloses that the hearing officer twice admonished Satanya Hudson, a friend of the plaintiff, for creating some sort of disturbance in the hearing room.
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.
The plaintiff next argues that the proposed final decision of the hearing officer was made upon unlawful procedure because the department lacked written procedures that applied specifically to hearings on dog disposal orders, thereby depriving the plaintiff of due process.
"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 requirement 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 articulated 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 disfavor 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." (Citation omitted; internal quotation marks omitted.) Ferraro 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 commissioner, 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 supports 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 Connecticut State Agencies (enclosed)." Thus, the plaintiff had notice of what procedural rules would — and, importantly, 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.
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 relevant 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 trial court found no merit to this claim, concluding that "[a] trial judge, and presumably a hearing officer, 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
The judgment of the trial court dismissing the plaintiff's appeal is affirmed.
In this opinion the other judges concurred.
"(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."
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 elaboration 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).
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.
Later, the following exchange occurred:
This final exchange is the first time that a reference to Hudson's medical condition appears on the record.