Romano v. Connecticut State Welfare Dept.

• Decision Date: 02 September 1966
• Docket Number: No. CV,CV
• Citation: 4 Conn.Cir.Ct. 138,227 A.2d 270
• Court: Circuit Court of Connecticut. Connecticut Circuit Court, Appellate Division
• Parties: Ralph ROMANO v. CONNECTICUT STATE WELFARE DEPARTMENT. 4-6506-4598.

Page 270

227 A.2d 270

4 Conn.Cir.Ct. 138

Ralph ROMANO v. CONNECTICUT STATE WELFARE DEPARTMENT.

No. CV 4-6506-4598.

Circuit Court of Connecticut, Appellate Division.

Argued April 25, 1966.

Decided Sept. 2, 1966.

Mary P. Ryan, Asst. Counsel, state welfare department, for appellant (defendant).

Jeremiah M. Keefe, Waterbury, for appellee (plaintiff).

KOSICKI, Judge.

The plaintiff appealed to the Circuit Court from the final decision of the state welfare commissioner by which the plaintiff was billed for the partial support of his father at a humane institution pursuant to § 17-295 of the General Statutes. Such an appeal is authorized, under § 17-2b, upon application of an aggrieved person, after a fair hearing before the commissioner or his authorized representative §§ 17-296, 17-2a, 17-2b. The pertinent provisions of the foregoing sections are quoted in the footnote. ¹

The following facts, appearing in the certified transcript of the hearing record before the commissioner, are not in dispute. On July 2, 1964, the plaintiff's father was admitted as a patient to the Connecticut Valley Hospital. After an investigation, pursuant to §§ 17-295, it was determined by the commissioner that the plaintiff, as one of the relatives made liable under the statute, should pay $12 a week toward his father's hospital support, effective from July 2; and on December 2 he was billed accordingly. On December 6, he protested the bill in writing and requested a fair hearing. On December 28, he was notified in writing of the place and time of hearing, to be held on February 11, 1965. The hearing was held on that date and a decision rendered on March 9, ordering a recomputation. On March 18, the recomputation established the plaintiff's obligation to be $20 weekly, an increase of $8. On March 29, a request was made for a further hearing, and continuance was granted to April 14. The final decision, billing the plaintiff at $15.91 weekly, was made on May 21, 1965, and from this decision an appeal was taken. §§ 17-296, 17-2b. ²

The only claims alleged in the appeal from the commissioner's decision were (1) the hearings and decisions were illegal because they were not held and rendered within the time periods specified by statute; and (2) the commissioner acted 'without authority, unreasonably, arbitrarily and in abuse of the discretion vested in' him in that (a) all the legally liable relatives have not been ordered to pay proportionate shares; (b) the exempted income allowed by the welfare department was insufficient to meet the current expenses and necessities of the plaintiff; and (c) the necessary computations made in formulating the decision did not take into account the plaintiff's expenses in producing his total gross income.

The trial court, in its memorandum of decision, sustained the appeal on the sole ground that the commissioner's decision was based to some extent on provisions of departmental policy which were not part of the record before the trial court. In this there was error. A full transcript of the hearing record together with a copy of the hearing decision was furnished to the trial court. § 17-2b(b). 'It therefore could and should have determined the appeal upon that record.' Neubauer v. Liquor Control Commission, 128 Conn. 113, 114, 20 A.2d 669. This question was raised by the court sua sponte and was not an issue framed by the pleadings. A claim not pleaded nor relied on during the trial cannot be raised now. Parsons v. Wethersfield, 135 Conn. 24, 28, 60 A.2d 771, 4 A.L.R.2d 330. In appeals from administrative officers or bodies, the burden of properly presenting the appeal rests on the appealing party. In the present case, the only question before the court was whether the commissioner had acted illegally or so arbitrarily and unreasonably as to abuse his decretion. § 17-2b. The burden of proof to show such conduct rested on the plaintiff. DeFelice v. Zoning Board of Appeals, 130 Conn. 156, 164, 32 A.2d 635, 147 A.L.R. 161; Riley v. Board of Police Commissioners, 147 Conn. 113, 117, 157 A.2d 590; Blakeman v. Planning Commission, 152 Conn. 303, 306, 206 A.2d 425; Perdue v. Zoning Board of Appeals, 118 Conn. 174, 178, 171 A. 26; 2 Am.Jur.2d, Administrative Law, § 748.

'Proceedings before an administrative board are informal. Saporiti v. Zoning Board of Appeals, 137 Conn. 478, 482, 78 A.2d 741. Such a board is not bound by the strict rules of evidence. Adam v. Connecticut Medical Examining Board, 137 Conn. 535, 540, 79 A.2d 350. It may act upon facts which are known to it even though they are not produced at the hearing. Jaffe v. State Department of Health, 135 Conn. 339, 349, 64 A.2d 330, 6 A.L.R.2d 664; Mrowka v. Board of Zoning Appeals, 134 Conn. 149, 154, 55 A.2d 909. The only requirement is that the conduct of the hearing shall not violate the fundamentals of natural justice. That is, there must be due notice of the hearing, and at the hearing no one may be deprived of the right to produce relevant evidence or to cross-examine witnesses produced by his adversary or to be fairly apprised of the facts upon which the board is asked to act. Wadell v. Board of Zoning Appeals, 136 Conn. 1, 8, 68 A.2d 152.' Parsons v. Board of Zoning Appeals, 140 Conn. 290, 292, 99 A.2d 149, 150. Furthermore, where the record is insufficient to enable the court upon appeal to understand clearly what was done, further evidence may be adduced before the court for its determination of what the facts really were; Grady v. Katz, 124 Conn. 525, 530, 1 A.2d 137; or, lacking and adequate record of the administrative proceedings, the appeal may be dismissed. DeFelice v. Zoning Board of Appeals, supra, 130 Conn. 165, 32 A.2d 635. If the statements of policy were deemed of consequence by the court in its determination of the issues raised by the appeal, it could easily have suggested to the plaintiff that it was his burden to produce them and that without them the court would be unable to pass on the legal issues presented by the pleadings. This was not done.

Although our decision that the court was in error in acting as it did would ordinarily be dispositive of this appeal, we believe that, in the interests of justice, we should treat the case as the parties have done, both at the trial and on the appeal, and consider the remaining assignment of error. Hoffman v. Kelly, 138 Conn. 614, 620, 88 A.2d 382; Celentano v. Zoning Board of Appeals, 136 Conn. 584, 588, 73 A.2d 101; Maltbie, Conn.App.Proc. § 42, p. 49. The claim, in general, is that the court erred in sustaining the appeal without determining, in its decision, that the commissioner had acted illegally or so arbitrarily and unreasonably as to abuse his discretion.

That was the only issue before the court. In his appeal from the commissioner's decision, the plaintiff alleges illegality in that the hearings and decisions were not conducted and rendered within the time limits specified by statute. The only instance in which this claim, if valid, would apply would be in the notification of December 28, 1964, that the fair hearing first applied for would be held on February 11, 1965. The plaintiff appeared and made no objection, and a fair hearing was held. All subsequent proceedings, continuances or decisions were at the request or for the benefit of the plaintiff and were timely. The plaintiff cannot complain now of something which he waived and from which no injury could conceivably have resulted. From the nature of the statute and the objectives sought to be accomplished it is obvious that the prescribed time limits are not jurisdictional (as they are in the case of publication of notice in zoning board hearings, e.g. Aurora v. Zoning Board of Appeals, 153 Conn. 623, 625, 220 A.2d 277). Otherwise, anomaly would inhere in the statute allowing an appeal from the commissioner's decision only after a fair hearing; § 17-2b; and then making the hearing and decision illegal because the statutory time limits were not strictly observed. An aggrieved person would thus be effectively deprived of his right of appeal because the same statute provides that, except for the appeal, the commissioner's decision shall be final. 'Courts must be scrupulous not to hamper the legitimate activities of * * * administrative boards by indulging in a microscopic search for technical infirmities in their action. Couch v. Zoning Commission, 141 Conn. 349, 358, 106 A.2d 173.' Silver Lane Pickle Co. v. Zoning Board of Appeals, 143 Conn. 316, 319, 122 A.2d 218, 219. This claim of the plaintiff is without merit. ³

The remaining issues which were briefed at the trial and on appeal relate to the failure of the commissioner to bill other relatives 'pr...