Henderson v. Department of Motor Vehicles

• Decision Date: 28 May 1985
• Docket Number: No. 2146,2146
• Court: Connecticut Court of Appeals
• Parties: Anthony HENDERSON v. DEPARTMENT OF MOTOR VEHICLES of the State of Connecticut.

Page 242

493 A.2d 242

4 Conn.App. 143

Anthony HENDERSON v. DEPARTMENT OF MOTOR VEHICLES of the State of Connecticut.

No. 2146.

Appellate Court of Connecticut.

Submitted on Briefs March 15, 1985.

Decided May 28, 1985.

Ernest F. Teitell, Stamford, filed a brief for appellant (plaintiff).

Joseph I. Lieberman, Atty. Gen., and John F. Gill, Asst. Atty. Gen., filed a brief for appellee (defendant).

Before BORDEN, DALY and HENDEL, JJ.

HENDEL, Judge.

The adjudications unit of the defendant department of motor vehicles, after a hearing pursuant to General Statutes § 14-111(c), ¹ found that the plaintiff caused or contributed to the death of Stanley Rogers in a motor vehicle accident and ordered that the plaintiff's motor vehicle operator's license be suspended for a period of eighteen months. The plaintiff appealed from that decision to the trial court, which dismissed the appeal. From the judgment rendered thereon, the plaintiff appealed. ²

The plaintiff claims that the trial court erred in holding that under General Statutes § 4-181, ³ which prohibits an adjudicator from engaging in certain ex parte communications in connection with any issue of fact in a contested case, a showing of prejudice to the rights of the plaintiff is required in order to set aside the adjudicator's decision. We find no error.

As found by the trial court, the administrative record revealed the following facts The hearing in this matter was held before the adjudicator in two sessions. Before the start of the first session, the adjudicator had an ex parte communication lasting about five minutes with Trooper Thomas A. Brown, the officer who investigated the accident. The adjudicator inquired as to the identity of the operator of the vehicle involved and looked at photographs. The plaintiff's counsel apparently was aware that a conference of some sort was taking place between the adjudicator and Brown, but at that time made no inquiry as to its nature.

Brown testified at the first session and his full report, including at least thirteen photographs, was admitted in evidence. At the beginning of his cross-examination of Brown, the plaintiff inquired about the ex parte conference with the adjudicator, but made no motion for disqualification of the adjudicator or to abort the hearing.

The second session of the hearing was held three months after the first session. At the second session, the plaintiff called two troopers to testify. After the testimony was completed, the plaintiff moved for a dismissal, claiming that the adjudicator violated General Statutes § 4-181 by having the ex parte conversation with Brown. The adjudicator denied the motion.

The plaintiff appealed to the trial court pursuant to General Statutes § 4-183, which is part of the Uniform Administrative Procedure Act (UAPA). After holding that a showing of prejudice to the plaintiff's rights is required upon noncompliance with § 4-181, the trial court found that there had been no showing that the ex parte communication between the adjudicator and Brown in any way caused injury to the plaintiff and that the action of the adjudicator was a "mere technical violation of Section 4-181." The trial court thereupon dismissed the appeal.

General Statutes § 4-183(g) provides, in part, that the court may reverse or modify the decision of an agency under the UAPA "if substantial rights of the appellant have been prejudiced because the administrative ... decisions are: (1) In violation of constitutional or statutory provisions...." The plaintiff claims that any violation of the prohibitions of General Statutes § 4-181 against ex parte communications abridges the plaintiff's right to a fair and impartial hearing and that no showing of prejudice to his rights is required in order for him to be entitled to relief.

We have found no Connecticut case discussing the effect of improper ex parte communications during an agency proceeding. Other jurisdictions which have considered the question have held, however, that a showing of prejudice to the plaintiff's rights is required before an agency's decision may be vacated and a new hearing ordered.

In Seebach v. Public Service Commission, 97 Wis.2d 712, 721, 295 N.W.2d 753 (1980), the Wisconsin Court of Appeals said "that material error occurs when a party not notified of an ex parte communication is prejudiced by the inability to rebut facts presented in the communication and where improper influence upon the decision-making appears with reasonable certainty." (Emphasis added.) The court found that the petitioners had not met their burden of proof to demonstrate that receipt of the improper ex parte communication prejudiced them to a material degree.

The United States Court of Appeals for the District of Columbia Circuit, in PATCO v. Federal Labor Relations Authority, 685 F.2d 547 (D.C.Cir.1982), extensively reviewed the effect of various ex parte communications between interested persons and members of the federal labor relations authority, which ordered revocation of the exclusive recognition status of the plaintiff Professional Air Traffic Controllers...