State v. Doe

• Decision Date: 10 April 2000
• Docket Number: No. CR990085967,CR990085967
• Citation: 765 A.2d 518
• Court: Connecticut Superior Court
• Parties: (Conn.Super. 2000) STATE OF CONNECTICUT v. JOHN DOE <A HREF="#fr1-*" name="fn1-*">* -NORWALK, AT NORWALK

765 A.2d 518 (Conn.Super. 2000)

STATE OF CONNECTICUT v. JOHN DOE^*

No. CR990085967

SUPERIOR COURT OF CONNECTICUT, JUDICIAL DISTRICT OF STAMFORD -NORWALK, AT NORWALK

April 10, 2000, Memorandum Filed

Richard J. Colangelo, Jr., assistant state's attorney, for the state.

Tierney, Zullo, Flaherty & Murphy, for the defendant.

Before: RODRIGUEZ, J.

OPINION:

Memorandum on the defendant's motion to dismiss.

I INTRODUCTION

RODRIGUEZ, J.

The defendant, John Doe, challenges the constitutionality of the laws and procedures used in Connecticut courts which provide for issuing protective orders that result in barring a person from their home as a result of an arrest for a family violence crime.

The defendant was issued a summons by officers from the local police department for disorderly conduct, a violation of General Statutes 53a-182, while he was at the residence he shares with his wife. The defendant later appeared before the court at which time the state requested the court to issue a protective order for the benefit of the defendant's wife. The defendant requested a continuance in order to procure counsel. The court referred the defendant to a family violence response and intervention officer (the officer) for the preparation of the initial report pursuant to General Statutes 46b-38c. According to the defendant's brief, the victim's advocate advised the officer that a protective order would issue. The officer spoke with the defendant in person and with the wife by phone. The officer compiled a report indicating the wife's allegations and the defendant's denial of the charges. The officer supplied the court with the report, and the court issued a protective order pursuant to 46b-38c.¹ The court ordered that the defendant refrain from imposing any restraint upon the person or liberty of his wife, from threatening, harassing, assaulting, molesting, or sexually assaulting his wife, and from entering the family dwelling occupied by his wife.

Subsequently, a hearing was conducted before this court at which the defendant was represented by counsel. The officer testified along with other witnesses. The court modified the order by permitting the defendant to return to his residence, but continued the remaining provisions of the previous restraining order.

The defendant claims that the statutes and procedures used for the issuance of the protective order are unconstitutional because they have denied the rights secured to him under Article first, 7, 8, 9, and 10, of the state constitution and the fifth and fourteenth amendments to the United States constitution. The defendant asks the court to dismiss the information against him pursuant to General Statutes 54-56 and Practice Book 41-8 (8) and 41-8 (9) and to dismiss the protective order.

The defendant alleges that his constitutional rights to substantive and procedural due process and equal protection have been violated. The defendant also claims that his rights pursuant to 46b-38c have been violated. The court will address the constitutional claims first.

The review of the defendant's constitutional claims is guided by the well established principle that a "presumption of constitutionality . . . attaches to a statutory enactment and the burden . . . rests upon a party asserting its invalidity to establish not only that it is unconstitutional beyond a reasonable doubt but that its effect or impact on him adversely affects a constitutionally protected right which he has. . . . [Finally], courts must, if possible, construe a law so that it is effective." (Citations omitted.) Society for Savings v. Chestnut Estates, Inc., 176 Conn. 563, 569, 409 A.2d 1020 (1979); see also Fleming v. Garnett, 231 Conn. 77, 88, 646 A.2d 1308 (1994) (in interpreting statute, search is for effective and constitutional construction that reasonably accords with legislature's underlying intent); (Internal quotation marks omitted.) Northeast Savings, F.A. v. Hintlian, 241 Conn. 269, 273, 696 A.2d 315 (1997).

II

The defendant initially claims that the statutory designation of a "victim" pursuant to the family violence statutes in 46b-38a et seq. without procedural safeguards, violates his substantive due process rights under the state and federal constitutions because the protective order entered by the court precluded the defendant from access to his home and property, and subjected him to enhanced criminal liabilities and penalties.

"The Due Process Clause of the Fifth Amendment provides that 'No person shall . . . be deprived of life, liberty, or property, without due process of law. . . .' [The United States Supreme Court] has held that the Due Process Clause protects individuals against two types of government action. So-called 'substantive due process' prevents the government from engaging in conduct that 'shocks the conscience.' Rochin v. California, 342 U.S. 165, 172 [,72 S. Ct. 205, 96 L. Ed. 183] (1952), or interferes with rights 'implicit in the concept of ordered liberty,' Palko v. Connecticut, 302 U.S. 319, 325-26[,58 S. Ct. 149, 82 L. Ed. 288] (1937). When government action depriving a person of life, liberty, or property survives substantive due process scrutiny, it must still be implemented in a fair manner. Mathews v. Eldridge, 424 U.S. 319, 335[,96 S. Ct. 893, 47 L. Ed. 2d 18] (1976). This requirement has traditionally been referred to as 'procedural' due process." United States v. Salerno, 481 U.S. 739, 746, 107 S. Ct. 2095, 95 L. Ed. 2d 697 (1987).

The court must first determine if the defendant has a protected liberty interest. "In order to prevail on his due process claim, the [defendant] must prove that: (1) he has been deprived of a property [or liberty] interest cognizable under the due process clause; and (2) the deprivation of the property [or liberty] interest has occurred without due process." (Internal quotation marks omitted.) State v. Matos, 240 Conn. 743, 749, 694 A.2d 775 (1997). The defendant has been deprived of his liberty to have access to his home and personal property. Additionally, the defendant is subject to criminal penalties for violation of the protective order. Thus, the defendant has been deprived of a liberty interest. The next question for the court, however, is whether the deprivation was without due process.

In a matter where the United States Supreme Court found pretrial detention to be regulatory and constitutional under a rational relation test, the court stated that in order "to determine whether a restriction on liberty constitutes impermissible punishment or permissible regulation, we first look to legislative intent. . . . Unless Congress expressly intended to impose punitive restrictions, the punitive/regulatory distinction turns on whether an alternative purpose to which [the restriction] may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned [to it]." (Internal quotation marks omitted.) United States v. Salerno, supra, 481 U.S. 747.

The statute which grants the Superior Court the authority to issue a protective order upon a charge of family violence, 46b-38c, was passed in 1986 as "An Act Concerning Family Violence Prevention and Response" (the act) and is an attempt by the legislature to prevent family violence as a direct result of the efforts of Tracy Thurman, a Connecticut victim of domestic violence, and others seeking a way to prevent family violence. 29 H.R. Proc., Pt. 14, 1986 Sess., pp. 5251-5273. It is clear from the legislative history of the act, that the restriction on the defendant's liberty is not punitive, but is meant to protect victims of family violence.

A similar statute in New York, N.Y. Crim. Pro. Law 530.12 (McKinney 1999),² allows courts to enter criminal protection orders as a result of a charge of a crime of family violence ordering the exclusion of a person from his or her home and exposing the person to heightened criminal punishment for violation of the protective order. The statute has been deemed constitutional by three New York trial courts. See People v. Koertge, 182 Misc. 2d 183, 701 N.Y.S.2d 588 (1999); People v. Forman, 145 Misc. 2d 115, 546 N.Y.S.2d 755 (1989); People v. Faieta, 109 Misc. 2d 841, 440 N.Y.S.2d 1007 (1981). The New York courts noted that N.Y. Crim. Pro. Law 530.12 (McKinney 1999) was intended to protect the victims of domestic violence and not to punish the defendant, and the state has a legitimate and significant interest in doing so. People v. Koertge, supra, 187; People v. Forman, supra, 125. The Connecticut legislature had a legitimate purpose in enacting 46b-38a et seq. to ensure the safety of victims of family violence.

Under the rational basis test the defendant, therefore, "bears the heavy burden of proving that the challenged policy has no reasonable relationship" to the stated purpose of securing the safety of victims of family violence. (Internal quotation marks omitted.) State v. Matos, supra, 240 Conn. at 750. The defendant has failed to show that a court ordered protective order excluding one party involved in a family relation dispute from the family residence has no reasonable relationship to the purpose of deterring family violence.

The defendant argues that the designation of a "victim" creates a bias against the defendant in his formal criminal prosecution. None of the information gathered pursuant to 46b-38a et seq., however, will be used for trial in the defendant's formal criminal prosecution. Contrary to his contention, the designation of a "victim" does not impair the presumption of innocence for the defendant. The trier of fact, with regard to the criminal charge of disorderly conduct, will not be informed of the protective order or any of the procedures or facts alleged that might have lead to a protective order, which the defendant or anyone else provided to the officer. The defendant's statements to the officer will not be admissible in the case in chief for the...