Appeal of Bailey

• Decision Date: 06 November 1969
• Court: Connecticut Supreme Court
• Parties: Appeal of Jesse BAILEY, Jr.

Page 177

262 A.2d 177

158 Conn. 439

Appeal of Jesse BAILEY, Jr.

Supreme Court of Connecticut.

Nov. 6, 1969.

Nicholas A. Cioffi, Special Public Defender, with whom was Lawrence L. Hauser, Norwalk, for plaintiff-appellant.

Richard E. Rapuano, Asst. Atty. Gen., with whom, on the brief, was Robert K. Killian, Atty. Gen., for defendant-appellee.

Before KING, C.J., and ALCORN, HOUSE, THIM and RYAN, JJ.

KING, Chief Justice.

On August 30, 1967, Jesse Bailey, Jr., a fifteen-year-old boy born June 1, 1952, was adjudicated a delinquent child in the Juvenile Court for the first district and was committed to the Connecticut School for Boys, located at Meriden and hereinafter referred to as Meriden. No claim is made that this original commitment, which was made pursuant to § 17-406 of the General Statutes (Rev. to 1968), was in any way unauthorized, unlawful or constitutionally defective.

Thus, in this appeal we are concerned only with a subsequent order of the Juvenile Court entered on May 23, 1968, transferring Jesse to the Connecticut Reformatory, a correctional institution for boys under twenty-one years of age which is located in Cheshire and hereinafter is referred to as Cheshire.

Pursuant to § 18-77 of the General Statutes (Rev. to 1968), an application was made to the Juvenile Court by the trustees of Meriden for the transfer of Jesse to Cheshire. It is important to note that under Connecticut law no 'administrative transfer' from Meriden to Cheshire is permitted, thus differentiating this case from cases such as Shone v. State, 286 F.Supp. 511, 513 (D. Me); In re Rich, 125 Vt. 373, 378, 216 A.2d 266; or United States ex rel. Stinnett v. Hegstrom, 178 F.Supp. 17, 20 (D. Conn.), involving similar, but purely administrative, transfers. In the instant case, a full hearing was held in the Juvenile Court on the transfer issue on May 23, 1968, as is shown by the transcript, which also indicates that Jesse and his mother were given ample notice and were represented by counsel and that each was given the opportunity of confrontation and cross-examination. See General Statutes (Rev. to 1968) §§ 17-66, 17-66a, 17-66b, 17-66c, 17-66d, 17-67. Actually, at the hearing, Jesse chose to take the stand and testified in substantial accordance with the claims of the attorney general, who appeared in favor of the granting of the petition for transfer. Incidentally, it should be pointed out that in Connecticut the duties of the attorney general do not embrace criminal proceedings. General Statutes (Rev. to 1966) § 3-125.

The court found that Jesse ran away from Meriden on a number of occasions, on one of which he was involved in the taking of an automobile without the owner's permission (General Statutes (Rev. to 1966) § 14-229); that, while supposedly confined in Meriden in the treatment unit (which the transcript indicates has several rooms in which unruly inmates may be kept in locked confinement), he succeeded in getting out and assaulted a staff member, inflicting injuries requiring hospitalization for about a month; that Meriden has no facilities adequate for containing a boy, such as Jesse, who persists in running away and refuses to respond to discipline or to cooperate in the school's program of rehabilitation; that consequently the school could no longer serve Jesse's needs; and that his conduct there placed in jeopardy other inmates and the staff of the school and so disrupted the school as materially to interfere with, and impair, its ability to rehabilitate the other inmates. From these and other similar facts, the court drew the ultimate conclusion that 'the best interest of Jesse Bailey requires that he be placed in an institution with a more structured and secure setting for his own benefit and for the benefit of the community no order to enable him to receive the education and training that he is entitled to, and (that) the Connecticut Reformatory is such as institution.'

From the order of transfer of the Juvenile Court, this appeal was taken to the Superior Court under §§ 17-70 and 17-70a of the General Statutes (Rev. to 1968). It should be noted that counsel on the appeal was appointed for Jesse upon a proper affidavit of indigency and that a timely and ample order of notice was issued by the Juvenile Court, including notice to Jesse, his attorney and his mother.

For convenience, Jesse is referred to herein as the appellant, although his mother is actually the named appellant. The only specific complaints made in his brief are (1) that he did not have a public hearing, although his mother was present with his attorney, and (2) that he was not given a jury trial. Nothing is said in Jesse's brief about the quantum of proof, although it is clear from the reservation that the Juvenile Court applied the civil rule of fair preponderance of the evidence rather than the criminal rule of proof beyond a reasonable doubt.

Instead of trying the appeal in the Superior Court, the appellant and the attorney general united in requesting the Superior Court to reserve for this court, on an agreed statement of facts, a stated question 'because the only reason of appeal to the Superior Court involves this question of constitutionality as to § 17-394 (later § 18-77), Connecticut General Statutes.' The Superior Court granted the foregoing request for reservation.

The question reserved is stated as follows: 'Is Section 17-394 (§ 18-77) of the Connecticut General Statutes, as amended, unconstitutional for the alleged reason that it violates due process of law and allows incarceration in a penal institution without first having a conviction of a crime?'

To avoid possible misunderstanding, it perhaps should be pointed out that the General Assembly, in the 1969 session, made very substantial changes in many of the statutory provisions involved in this appeal. See Public Acts 1969, Nos. 483, 664, 794. Much of what is said in this opinion, and many of the references to statutes, necessarily will be affected by the 1969 changes. Probably the most important change, as far as this proceeding is concerned, is the repeal of the transfer statute (§ 18-77) which is the statute the constitutionality of which Jesse is attacking. This repeal was effected by § 18 of No. 664 of the Public Acts of 1969.

We were informed by counsel in argument that Jesse is now at home with his mother on parole from Cheshire. Since he is now over seventeen, he has long since passed from the exclusive original jurisdiction of the Juvenile Court (General Statutes (Rev. to 1968) § 17-59), and, if he indulges in any criminal misconduct, he will be amenable to ordinary criminal procedures, which will accord him the right to a public jury trial. Since he is still, however, on parole from Cheshire, this appeal is technically not moot, however useless it may appear as a practical matter as far as Jesse is concerned. Whiteside v. Burlant, 153 Conn. 204, 206, 215 A.2d 100; Sibron v. New York, 392 U.S. 40, 50, 88 S.Ct. 1889, 20 L.Ed.2d 917; see also note, 9 A. L.R.3d 462, 493 § 10. In the first place, it is to be hoped that his conduct on parole will be good. But if he engages in further criminal misconduct, technically he might, on conviction, have to serve some further time in Cheshire under his present commitment.

Consequently, we consider the question reserved although, for reasons hereinafter pointed out, the reservation is inadequate for us to determine that question.

A reading of Jesse's brief shows that his claim is that the order of transfer amounted to an order for his commitment to Cheshire; that Cheshire is a penal institution; and that a person cannot constitutionally be confined in a penal institution without a conviction of a crime after a proceeding conducted in accordance with the constitutional requirements for a criminal trial.

As previously pointed out, the appeal does not question the constitutionality of Jesse's original commitment to Meriden, since Jesse agrees that Meriden is not a penal institution. See cases such as Nieves v. United States, 280 F.Supp. 994 (S.D.N.Y.). It is true, as Jesse claims, that Juvenile Court procedure is essentially civil in nature, as was early recognized in our own case of Cinque v. Boyd, 99 Conn. 70, 84, 121 A. 678. That theory was recently recognized by the Supreme Court of the United States in In re Gault, 387 U.S. 1, 30, 87 S.Ct. 1428, 18 L.Ed.2d 527, and in the slightly earlier case of Kent v. United States, 383 U.S. 541, 554, 86 S.Ct. 1045, 16 L.Ed.2d 84. It is on this, the parens patriae basis, that certain of the informalities of Juvenile Court procedure have been held constitutionally permissible. See also In re Whittington, 391 U.S. 341, 344, 88 S.Ct. 1507, 20 L.Ed.2d 625.

We turn now to Jesse's primary and basic claim, which is that, when he was transferred from Meriden to Cheshire, he was transferred from a custodial institution to a penal institution.

Whether this is so depends on whether the Connecticut Reformatory is in fact a penal institution. Unless it is, Jesse's whole argument falls. And it is elementary that in this proceeding the burden of proving that Cheshire is a penal institution, as to Jesse, is on him, since the unconstitutionality of a statute is not to be presumed.

The statement of facts in the reservation contains nothing about the character of Cheshire, its facilities, or how it handles transferees from Meriden such as Jesse. It contains no facts on which we could hold that it is a penal institution, nor did the Juvenile Court find any such facts. It is thus not suprising that Jesse does not in his brief base his claim that Cheshire is a penal institution on anything in the statement of facts. Rather, he predicates that claim on certain statutory provisions, particularly §§ 18-73, 18-75, and 18-77 of the General Statutes (Rev. to 1968). ¹ The attorney general strenuously contends that Cheshire is not a penal institution as to Jesse. Thus we are confronted with a...