STATE OF CONNECTICUT EX REL. JEREMIAH DUNN, CHIEF STATE ANIMAL CONTROL OFFICER v. JOANN CONNELLY ET AL.
(AC 46113)
Appellate Court of Connecticut
Argued May 23—officially released October 8, 2024
Elgo, Seeley and Bishop, Js.
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The defendant C appealed from the judgment of the trial court vesting in the plaintiff ownership of certain animals the court found to be neglected after they were seized subsequent to a warrantless search of C‘s property, where she operated an animal rescue. C claimed, inter alia, that the court improperly denied her motion in limine, which sought to exclude all evidence seized following the search on the basis of its determination that the exclusionary rule did not apply to animal welfare proceedings brought pursuant to statute (
This court concluded, under the balancing test set forth in United States v. Janis (428 U.S. 433), that the trial court‘s ruling denying C‘s motion in limine was legally and logically correct, that court having correctly determined that the exclusionary rule was inapplicable in civil proceedings, as the minimal deterrent effect of employing the rule in the circumstances at issue was substantially outweighed by the societal interest in presenting reliable evidence of animal neglect in actions under
C waived her claim that she was entitled to a jury trial under
Argued May 23—officially released October 8, 2024
Procedural History
Verified petition seeking, inter alia, custody in favor of the plaintiff of certain animals in the named defendant‘s possession that allegedly were neglected or cruelly treated, and for other relief, brought to the Superior Court in the judicial district of Hartford, where the court, Budzik, J., issued an order vesting temporary custody of the animals with the plaintiff; thereafter, the court granted the named defendant‘s motion to reargue;
Trey Mayfield, pro hac vice, with whom, on the brief, was John J. Radshaw III, for the appellant (named defendant).
Daniel M. Salton, assistant attorney general, with whom, on the brief, were William Tong, attorney general, and Katherine A. Roseman, assistant attorney general, for the appellee (plaintiff).
Opinion
SEELEY, J. The defendant Joann Connelly1 appeals from the judgment of the trial court vesting permanent custody with the Department of Agriculture (department) of certain animals owned by the defendant, which included thirty-three dogs, twenty-eight cats, five ducks, three goats, one parakeet, and one pony. On appeal, the defendant claims that (1) the court improperly denied her motion in limine, which sought to exclude any evidence seized following a warrantless search of her property, on the basis of its determination that the exclusionary rule does not apply to civil proceedings, and (2) the animal welfare statute,
The following facts and procedural history are relevant to this appeal. The defendant is the owner of property located at 171 Porter Road in Hebron, at which she operates CT Pregnant Dog and Cat Rescue, Inc. (rescue). The rescue is wholly owned by the defendant and is a licensed animal importer registered with the state pursuant to
On March 23, 2022, Tanya Wescovich, an animal control officer with the plaintiff, the state of Connecticut, visited the property with an employee of the Department of Children and Families,3 which had received a report that the defendant was abandoning the property and the animals being kept there. On the basis of Wescovich‘s observations during that visit, the next day, March 24, 2022, Wescovich, along with William A. Bell, the animal control officer for the town of Hebron, applied for a search and seizure warrant for the defendant‘s property in Hebron. The warrant application was granted by the Superior Court that same day.4 On March
On April 18, 2022, Jeremiah Dunn, the chief animal control officer of the plaintiff, filed a verified petition seeking permanent ownership of the animals pursuant to
The defendant subsequently filed a motion seeking to withdraw her oral stipulation from the April 29, 2022 hearing, as well as a motion to reargue the court‘s April 29, 2022 order of temporary custody. In her motion to reargue, the defendant asserted that new information had come to light that created “a genuine issue of material fact regarding the statutory underpinnings of the plaintiff‘s claims in [the] verified petition.” Specifically, the defendant claimed that results of the examinations performed “on each individual animal by licensed veterinarians after they were in the custody of the animal control officers who had effectuated the seizure” were not available at the time of the April 29, 2022 hearing, and that the results of these examinations showed that all but one animal were “healthy and apparently well cared for.” The court granted the defendant‘s motion to reargue on May 18, 2022, and scheduled a new hearing on the plaintiff‘s application for temporary custody on May 26, 2022.
During the May 26, 2022 hearing, Wescovich and the defendant both testified. By agreement of the parties, the court admitted into evidence twenty-nine exhibits, consisting of, inter alia, photographs taken during the March 25, 2022 seizure of the animals, as well as veterinary reports documenting the physical condition of the animals. In a memorandum of decision dated June 15, 2022, the court made the following findings. “On March 23, 2022 . . . Wescovich visited the property with an employee of the . . . Department of Children and Families . . . [which] had received a report that [the defendant] was abandoning the property and the animals
“Upon walking within fifteen feet of the front door of the house . . . Wescovich detected an overwhelming odor of ammonia from the presence of urine and feces. Upon enter[ing] the house itself . . . Wescovich observed that the floors of the house were covered with cat and dog urine and feces, loose dog food, dirt, and newspaper clippings. . . . Wescovich testified that the air quality inside the house was so poor that she had difficulty breathing despite the use of an N95 respirator mask. . . . Wescovich also testified that the air in the house created a burning sensation in her eyes.
“On the first floor of the house . . . Wescovich observed approximately twenty-eight dogs in cages distributed throughout the first floor. Two additional dogs were loose in the house. . . . Wescovich observed that the first floor areas generally and each of the dogs’ cages were, to be plain, filthy. The cages were soiled8
“Wescovich observed cobwebs throughout the entire house. There were piles of trash and unusable junk everywhere. . . . Wescovich stated that it was difficult to move about the house because of the presence of so much trash and junk. Indeed, on March 25, 2022, the house was condemned by the Chatham Health District10 as unfit for human habitation and in violation of [§ 19-13-B1 (i) of the Regulations of Connecticut State Agencies, which is part of the Connecticut Public Health Code].11 . . . Wescovich also recovered numerous used and unused containers of various animal medicines and syringes . . . including canine distemper vaccine and sulfadimethoxine (trademarked as Albon). Possession and use of canine distemper vaccine and Albon is restricted.
“Upon entering the basement area . . . Wescovich found fourteen cats in cages. Four more dogs were confined to kennels in the basement, and at least one dog was loose in the basement. The conditions in the basement were similar to the filthy and unsanitary conditions in the rest of the house. The floors of the cat cages and dog kennels were dirty with urine, feces, and spilled cat litter. Litter boxes were full. There were no clean places for the animals to sit. Garbage was piled in the corners of the basement and strewn about the basement generally.
“The barn and paddock area were similarly cluttered with trash and unusable junk. The paddock area contained such a large pile of fecal matter and hay that it was situated such that animals would have to walk through the pile to gain access to the barn. A pony and several goats and ducks lived in this area.
“After seizure from the property, the subject animals were taken to various local veterinary hospitals for
On the basis of these findings, the court found, by a preponderance of the evidence, that the defendant “abused, neglected, and cruelly treated the subject animals” by failing “to give the subject animals ‘proper care’ and [to] provide them with ‘wholesome air,’ as those terms are defined by
ordered the defendant to pay a cash or surety bond of $500 per animal, which she did for all of the animals except the ducks.13
Subsequently, a hearing was scheduled for September 7, 2022, pursuant to
On October 3, 2022, the plaintiff filed an objection to the defendant‘s motion in limine, arguing that the motion was procedurally improper, as only the defendant, and not counsel, had signed the motion. The plaintiff claimed that, although the motion was signed by the defendant herself and “assert[ed] in the certification that she [was acting] ‘pro se’ . . . the defendant‘s counsel has made it clear . . . [that] he [was] still on retainer, and, in consultation with counsel, it appears he had no knowledge of this motion and did not review its contents prior to its filing. The defendant cannot simultaneously have representation and also represent herself. As is well settled in Connecticut jurisprudence, hybrid representation is not permitted in a civil context.” The plaintiff further argued that the motion was waived and that the “exclusionary rule . . . has been categorically disallowed in civil actions.”
On October 6, 2022, the court issued an order denying the defendant‘s motion in limine.14 In its order, the court stated: “The exclusionary rule does not apply to civil
On October 18, 2022, the court held a hearing on the plaintiff‘s petition for permanent custody of the animals. In doing so, it took judicial notice of the testimony presented at the May 26, 2022 temporary custody hearing, as well as the plaintiff‘s exhibits entered into evidence at the May 26 hearing, and they were entered into evidence at the October 18 hearing. At the beginning of the hearing, the defendant‘s counsel stated that the defendant took exception to the court‘s order denying the motion to reargue the court‘s denial of the motion in limine. The court reiterated its denial of the motion in limine, stating, “I don‘t think the exclusionary rule applies . . . for purposes of this case. I‘m ruling that it does not. I agree with [plaintiff‘s] argument that this proceeding is civil in nature. I‘d also note that the statute . . . at issue here is . . . for the protection of animals and . . . the safety and security of the animals at issue. It is not punitive in the sense [of] the case15 cited by the defendant. . . . It is to protect the animals, which would be another reason why I don‘t think the exclusionary rule applies.
“Finally, I think . . . that the defendant had ample opportunity to raise these issues at . . . probable
The court responded: “I understood that. But your client was present. The video simply shows the conduct of your client. And your client was present and could have instructed her attorney, based on her presence and knowledge of the circumstances, to file whatever objection she thought was appropriate. Or you could have made that evaluation based on simply consulting with your client. You didn‘t need the video to tell you what happened. She was there.” At this point, the defendant responded by stating: “I [complained] multiple times. I‘d like that on the record. And I‘ve complained multiple times, my civil rights were violated. Multiple times. And I requested to speak out and to be heard.” Although the court attempted to quiet the defendant, she continued to speak, and the following colloquy occurred:
“[The Defendant]: They illegally entered my house and stole my animals.
“The Court: Ma‘am, you‘re only harming your argument by stating that you knew your civil rights were violated. That only makes my ruling stronger because you knew your civil rights were violated yet didn‘t object.
“[The Court]: So, you should listen to your attorney.
“[The Defendant]: I wasn‘t allowed to.
“The Court: Ma‘am. You should listen to your attorney and follow his advice.”
Upon the conclusion of this exchange, the court began the trial. After the court admitted the evidence from the May 26, 2022 hearing, the plaintiff rested its case. Thereafter, the defendant called as witnesses Wescovich and Elizabeth Lee Murphy, a veterinarian. The defendant also testified at the hearing.
On December 13, 2022, the court issued its memorandum of decision vesting permanent ownership of all the animals with the department. In its memorandum of decision, the court “reaffirm[ed], readopt[ed], and incorporate[d] . . . all of the court‘s findings of fact as set forth in its June 15 [2022] memorandum of decision, as if fully set forth herein.” The court then made the following additional findings related to the evidence presented during the defendant‘s case-in-chief. “Wescovich testified that she did not use any scientific measuring device to measure the air quality in [the defendant‘s] house . . . . Murphy has been a veterinarian since 1985. . . . Murphy testified that she had reviewed the [plaintiff‘s] exhibits and that the [plaintiff‘s] exhibits were the basis of her opinions. . . . Murphy did not examine any of the subject animals and never visited the property. . . . Murphy opined that, while the sanitary conditions in which the subject animals lived were ‘not adequate’ . . . the animals were [not] in life-threatening conditions and . . . had sufficient food, water, and shelter. Murphy also testified that the house that the subject animals lived in was more like a ‘barn,’ and that, while a barn was ‘probably not’ a proper environment for the subject animals, the
The court did not credit the portions of Murphy‘s testimony in which she opined that the animals had not been neglected or cruelly treated, as well as her testimony with respect to the specific medical conditions of the animals, as Murphy did not examine any of the animals. The court also specifically did not credit portions of the defendant‘s testimony. The court found, “by a preponderance of the evidence, that [the defendant] abused, neglected, and cruelly treated the subject animals . . . .” In making this finding, the court noted that the conditions at the property were unsanitary and filthy, and that the medical conditions of the animals reflected those unsanitary and filthy conditions. The court stated: “In particular, the long-term presence and accumulation of urine and feces [found at the defendant‘s property] produced an unwholesome air quality heavily laden with harmful ammonia gas. Nothing presented in the hearing on permanent custody changes the factual or legal conclusions reached by the court in its June 15, 2022 memorandum of decision on temporary custody. Indeed . . . Murphy affirmatively testified that the sanitary conditions in which the subject animals lived were ‘not adequate,’ and that the barn-like conditions the subject animals lived in were ‘probably not’ a proper environment for the . . . animals.”
The court concluded, on the basis of the evidence
I
The defendant first claims that the trial court improperly denied her motion in limine on the basis of its
We first set forth the applicable standard of review. “The purpose of a motion in limine is to exclude irrelevant, inadmissible and prejudicial evidence from trial . . . .” (Internal quotation marks omitted.) 111 Clearview Drive, LLC v. Patrick, 224 Conn. App. 419, 427, 313 A.3d 386 (2024). When a trial court‘s ruling pertaining to a motion in limine is based on a legal determination, “the applicable standard of review requires this court to determine whether the trial court was legally and logically correct . . . .” (Internal quotation marks omitted.) Id., 426. In the present case, because the court‘s determination that the exclusionary rule is inapplicable involved a legal determination, we exercise plenary review. See id.
A
The following legal principles are relevant to the defendant‘s claim that the exclusionary rule is applicable to a civil animal welfare proceeding. “The [f]ourth [a]mendment provides that, ‘The right of the people to
“The [f]ourth [a]mendment protects the right to be free from ‘unreasonable searches and seizures,’ but it is silent about how this right is to be enforced. To supplement the bare text, [the United States Supreme Court] created the exclusionary rule, a deterrent sanction that bars the prosecution from introducing evidence obtained by way of a [f]ourth [a]mendment violation.” Davis v. United States, 564 U.S. 229, 231-32, 131 S. Ct. 2419, 180 L. Ed. 2d 285 (2011). As such, the exclusionary rule “is a prudential doctrine . . . created by [the] [c]ourt to compel respect for the constitutional guarant[ee]. . . . Exclusion is not a personal constitutional right, nor is it designed to redress the injury occasioned by an unconstitutional search. . . . The rule‘s sole purpose is to deter future [f]ourth [a]mendment violations.” (Citations omitted; internal quotation marks omitted.) Id., 236-37. “[T]he exclusionary rule bars the government from introducing at trial
evidence obtained in violation of the
“[T]he exclusionary rule is neither intended nor able to cure the invasion of the defendant‘s rights which he has already suffered. . . . [T]he [exclusionary] rule‘s prime purpose is to deter future unlawful police conduct and thereby effectuate the guarantee of the [f]ourth [a]mendment against unreasonable searches and seizures. . . . Application of the rule is thus appropriate in circumstances in which this purpose is likely to be furthered. . . . [I]n the complex and turbulent history of the rule, the [United States Supreme] Court never has applied it to exclude evidence from a civil proceeding, federal or state. Immigration & Naturalization Service v. Lopez-Mendoza, [468 U.S. 1032, 1041-42, 104 S. Ct. 3479, 82 L. Ed. 2d 778 (1984)] (holding that rule does not apply in deportation proceedings); see also Pennsylvania Board of Probation & Parole v. Scott, 524 U.S. 357, 363, 118 S. Ct. 2014, 141 L. Ed. 2d 344 (1998) (recognizing that [Supreme Court has] repeatedly declined to extend the exclusionary rule to proceedings other than criminal trials and holding that rule was not applicable in parole revocation proceedings);22
United States v. Janis, 428 U.S. 433, 448, 454, 96 S. Ct. 3021, 49 L. Ed. 2d 1046 (1976) (holding that rule does not apply in civil tax proceedings); United States v. Calandra, 414 U.S. 338, 343-46, 94 S. Ct. 613, 38 L. Ed. 2d 561 (1974) (holding that rule does not apply in grand jury proceedings). [B]ecause the rule is prudential rather than constitutionally mandated, [it has been held] to be applicable only where its deterrence benefits outweigh its substantial social costs. . . . Pennsylvania Board of Probation & Parole v. Scott, supra, 363. [T]he need for deterrence and hence the rationale for excluding the evidence are strongest where the [g]overnment‘s unlawful conduct would result in imposition of a criminal sanction on the victim of the search. . . . Fishbein v. Kozlowski, 252 Conn. 38, 52-53, 743 A.2d 1110 (1999).” (Citation omitted; footnote added; internal quotation marks omitted.) Boyles v. Preston, 68 Conn. App. 596, 611-13, 792 A.2d 878, cert. denied, 261 Conn. 901, 802 A.2d 853 (2002); see also Davis v. United States, supra, 564 U.S. 236-37 (because exclusionary “rule‘s sole purpose . . . is to deter future [f]ourth [a]mendment violations . . . [United States Supreme Court] cases have thus limited the rule‘s operation to situations in which this purpose is thought most efficaciously served” (citations omitted; internal quotation marks omitted)). “Because the exclusionary rule precludes consideration of reliable, probative evidence, it imposes significant costs: It undeniably detracts from the truth-finding process and allows many who would otherwise be incarcerated to escape the consequences of their actions. See Stone v. Powell, [428 U.S. 465, 490, 96 S. Ct. 3037, 49 L. Ed. 2d 1067 (1976)]. Although [the United States Supreme Court has] held these costs to be worth bearing in certain circumstances, [its] cases have repeatedly emphasized that the rule‘s costly toll upon truth-seeking and law enforcement objectives presents a high obstacle for those urging application of the rule. United States v. Payner, 447 U.S. 727, 734 [100 S. Ct. 2439, 65 L. Ed. 2d 468] (1980).” (Footnote omitted; internal quotation marks omitted.) Pennsylvania Board of Probation & Parole v. Scott, supra, 364-65.
Nevertheless, the exclusionary rule has been applied beyond the confines of criminal cases “in a proceeding for forfeiture of an article used in violation of the criminal law. [See One 1958 Plymouth Sedan v. Pennsylvania], 380 U.S. 693 [85 S. Ct. 1246, 14 L. Ed. 2d 170] (1965) [Plymouth Sedan]. [In Plymouth Sedan, the court] expressly relied on the fact that ‘forfeiture is clearly a penalty for the criminal offense’ and ‘[i]t would be anomalous indeed, under these circumstances, to hold that in the criminal proceeding the illegally seized evidence is excludable, while in the forfeiture proceeding, requiring the determination that the criminal law has been violated, the same evidence would be admissible.‘” United States v. Janis, supra, 428 U.S. 447 n.17; see also In re 650 Fifth Avenue & Related Properties, 830 F.3d 66, 98 (2d Cir. 2016) (“[i]t is well-established that the [f]ourth [a]mendment‘s exclusionary rule applies in forfeiture cases“); One 1995 Corvette VIN No. 1G1YY22P585103433 v. Mayor & City Council of Baltimore, 353 Md. 114, 123-24, 724 A.2d 680 (“Eleven of the thirteen United States Courts of Appeals have interpreted Plymouth Sedan to stand for the proposition that the exclusionary rule applies to civil in rem forfeitures. Additionally, courts in thirty-four states
The United States Supreme Court, thus, has not foreclosed application of the exclusionary rule to civil proceedings. “Instead, the [c]ourt [has] instructed that the exclusionary rule may be extended where the benefits exceed the costs to society“; Garrett v. Lehman, 751 F.2d 997, 1003 (9th Cir. 1985); and it “set forth a framework for deciding in what types of proceeding[s] application of the exclusionary rule is appropriate. Imprecise as the exercise may be, the [c]ourt recognized in [United States v. Janis, supra, 428 U.S. 446] that there is no choice but to weigh the likely social benefits of excluding unlawfully seized evidence against the likely costs.” Immigration & Naturalization Service v. Lopez-Mendoza, supra, 468 U.S. 1041; see also Ahart v. Colorado Dept. of Corrections, 964 P.2d 517, 520 (Colo. 1998) (“The question of whether the exclusionary rule applies in a particular civil case requires weighing the deterrent benefits of applying the rule against the societal cost of excluding relevant evidence. . . . There is no ‘bright line’ to determine when the rule should apply, and courts must apply the Janis analytic framework on a case by case basis.” (Citation omitted.)). This approach is known as the Janis balancing test. See Immigration & Naturalization Service v. Lopez-Mendoza, supra, 1042; see also Long Lake Township v. Maxon, 343 Mich. App. 319, 330, 997 N.W.2d 250 (2022) (“[t]he Janis balancing test, as it is now known, requires a court contemplating applying the exclusionary rule in a civil proceeding to weigh the ‘prime purpose’ of the rule—deterrence—against ‘the likely costs’ “), aff‘d, Docket No. 164948, 2024 WL 1960615 (Mich. May 3, 2024). In applying that test, the Supreme Court determined in Janis that the exclusionary rule does not apply to a federal civil tax assessment proceeding and in Lopez-Mendoza that it does not apply to a deportation proceeding. See United States v. Janis, supra, 459-60; see also Immigration & Naturalization Service v. Lopez-Mendoza, supra, 1042.
Our appellate and trial courts have applied the Janis balancing test when determining whether the exclusionary rule applies to certain civil proceedings. See, e.g., Fishbein v. Kozlowski, supra, 252 Conn. 54 (applying Janis balancing test in determining that exclusionary rule does not apply to driver‘s license suspension hearings); Payne v. Robinson, 207 Conn. 565, 570, 541 A.2d 504 (1988) (applying Janis balancing test in determining that exclusionary rule does not apply to probation revocation proceedings), cert. denied, 488 U.S. 898, 109 S. Ct. 242, 102 L. Ed. 2d 230 (1988); Boyles v. Preston, supra, 68 Conn. App. 612-13 (applying Janis balancing test in determining that exclusionary rule does not apply to civil trial); Housing Authority v. Dawkins, Superior Court, judicial district of Stamford-Norwalk, Housing Session at Norwalk, Docket No. 9502-16173 (May 10, 1995) (14 Conn. L. Rptr. 450) (applying Janis balancing test in determining that exclusionary rule does not apply in summary process proceeding), aff‘d, 239 Conn. 793, 686 A.2d 994 (1997); see also Tompkins v. Freedom of Information Commission, supra, 136 Conn. App. 499 n.4 (standing for proposition that exclusionary rule categorically does not apply to civil proceedings), citing In re Nicholas R., supra, 92 Conn. App. 321.23
Accordingly, “United States Supreme Court precedent regarding the exclusionary rule‘s use in civil cases can be succinctly summarized as follows: it only applies in forfeiture actions when the thing being forfeited as a result of a criminal prosecution is worth more than the criminal fine that might be assessed. That‘s it.” Long Lake Township v. Maxon, supra, 343 Mich. App. 332; see also Dolan v. Salinas, Superior Court, judicial district of New Britain, Docket No. CV 99-0494202-S (July 22, 1999) (25 Conn. L. Rptr. 119, 121) (“[t]he only civil context in which the [United States] Supreme Court has applied the exclusionary rule is a case of a ‘quasi-criminal’ forfeiture proceeding based on criminal conduct“). Further, “[i]t is unclear if the Supreme Court requires a threshold finding that the nature of the civil proceeding is ‘quasi-criminal’ . . . or if the nature of the proceeding is merely one factor in applying the Janis balancing test.” (Citation omitted.) Pike v. Gallagher, 829 F. Supp. 1254, 1265 n.6 (D.N.M. 1993).
Notably, if a proceeding is identified as quasi-criminal, we have treated that as determinative of whether the exclusionary rule applies without requiring consideration of the Janis balancing test. See In re Nicholas R., supra, 92 Conn. App. 321 n.3. In Connecticut, few proceedings are deemed to be quasi-criminal, and they include (1) “forfeiture proceeding[s] intended to penalize . . . for the commission of a criminal offense“; Miller v. Dept. of Agriculture, 168 Conn. App. 255, 269 n.15, 145 A.3d 393 (citing One 1958 Plymouth Sedan v. Pennsylvania, supra, 380 U.S. 702), cert. denied, 323 Conn. 936, 151 A.3d 386 (2016); (2) attorney disciplinary proceedings; Burton v. Mottolese, 267 Conn. 1, 19, 835 A.2d 998 (2003), cert. denied, 541 U.S. 1073, 124 S. Ct. 2422, 158 L. Ed. 2d 983 (2004); and (3) juvenile delinquency proceedings. In re Nicholas R., supra, 92 Conn. App. 321 n.3; see also In re Samantha C., 268 Conn. 614, 664, 847 A.2d 883 (2004) (proceedings to terminate parental rights are not quasi-criminal); Robertson v. Apuzzo, 170 Conn. 367, 375, 365 A.2d 824 (child paternity proceedings are civil, not quasi-criminal), cert. denied, 429 U.S. 852, 97 S. Ct. 142, 50 L. Ed. 2d 126 (1976); Miller v. Dept. of Agriculture, supra, 263-64 (administrative hearing on disposal orders for biting animals is not quasi-criminal).
Our courts have never reached the issue of whether animal welfare proceedings conducted pursuant to
B
dispute whether animals are considered property but argues that such proceedings do not constitute a civil forfeiture under this state‘s statutory scheme. We agree with the plaintiff.
Whether an animal welfare proceeding conducted pursuant to
By contrast,
For example, in State v. Richard P., 179 Conn. App. 676, 678, 181 A.3d 107, cert. denied, 328 Conn. 924, 181 25
“This rule of statutory construction has been applied vigorously in instances in which the legislature has repeatedly employed a term in other statutes, but did not use it in the provision to be construed. As our Supreme Court stated in Viera v. Cohen, 283 Conn. 412, 431, 927 A.2d 843 (2007), ‘we underscore that the legislature frequently has used the term withdrawal. . . . Typically, the omission of a word otherwise used in the statutes suggests that the legislature intended a different meaning for the alternate term.’ . . . ‘Where a statute, with reference to one subject contains a given
“Moreover, in other statutes concerning witnesses, the legislature explicitly has expressed its intent to include circumstances in which a witness is beyond the reach of process, or cannot be found, and thus cannot be compelled to testify. For example, in
Furthermore,
Although animal welfare proceedings under
We note that the defendant‘s briefing on this issue is minimal. After citing federal case law holding that the exclusionary rule applies to forfeiture cases, the defendant simply asserts, in a conclusory fashion, that “because the civil forfeiture action brought under
Therefore, because an animal welfare proceeding brought pursuant to
C
Having determined that an animal welfare proceeding brought pursuant to
We begin with the object of our state‘s animal welfare proceedings. The defendant argues that proceedings pursuant to
Unlike civil forfeiture actions, which are meant to penalize the property owner,28 remedial actions are those actions that are designed to protect the rights and interests of a specific, often vulnerable, group. See Stone v. East Coast Swappers, LLC, supra, 337 Conn. 600-601 (Connecticut Unfair Trade Practices Act,
With respect to the purpose of an animal welfare action, this court has stated previously that “it is clear from the legislative history that the primary purpose of
D
Finally, we must determine whether, pursuant to the Janis balancing test, the exclusionary rule applies to animal welfare actions. This court previously applied the Janis balancing test in Payne v. Robinson, 10 Conn. App. 395, 523 A.2d 917 (1987), aff‘d, 207 Conn. 565, 541 A.2d 504, cert. denied, 488 U.S. 898, 109 S. Ct. 242, 102 L. Ed. 2d 230 (1988). In Payne, this court was faced with the question of whether the exclusionary rule should apply to probation revocation proceedings. We
In addressing this claim, we first look to child protection proceedings for guidance, as they share important similarities with animal welfare proceedings in that both seek to protect a vulnerable class or group and both are civil, and not quasi-criminal, in nature. See In re Samantha C., supra, 268 Conn. 649 (child neglect proceedings are civil and not quasi-criminal); In re Baby Girl B., 224 Conn. 263, 282, 618 A.2d 1 (1992) (concluding that proceeding to terminate parental rights is civil action).32 In In re Nicholas R., supra, 92 Conn. App. 321, this court concluded that the exclusionary rule
“Nor does the potential impact upon a parent of a child protective proceeding require application of the rule. The possible consequences range from an order placing the child under the supervision of a child protective agency while remaining in parental custody to temporary removal of the child for an initial period of up to [eighteen] months . . . . Certainly, such potential interference in family relationships evokes the need for limited constitutional protections, albeit not to the same extent as would a proceeding to permanently remove the child . . . . These potential consequences, however, are not intended to punish the parent, but rather to protect the child. The effect on the parent is but a necessary collateral result of the need to safeguard the child. . . . The [l]egislature has specifically declared that the purpose of a child protective proceeding is ‘to help protect children from injury or mistreatment and to help safeguard their physical, mental, and emotional well-being’ and to act ‘on behalf of a child so that his needs are properly met’ . . . . On balance, the [s]tate‘s interest in protecting abused children and the unthinkable consequences to the children if they are left in the hands of abusive parents far outweigh the potential consequences to the parents.” (Citations omitted.) Id., 357-58. Accordingly, the court concluded “that because a child protective proceeding itself is not punitive in nature and the deterrent effect of the exclusionary rule will be adequately served by precluding use of the evidence in any related criminal proceeding, the [s]tate‘s interest in protecting its children mandates the admissibility of relevant evidence seized during an illegal search.” Id., 358.
“There appears to be little likelihood that any substantial deterrent effect on unlawful police intrusion would be achieved by applying the exclusionary rule to child protection proceedings. Whatever deterrent effect there might be is far outweighed by the need to provide for the safety and health of children in peril. Although it is difficult to empirically document the impact of the exclusionary rule . . . the very paucity of exclusionary rule cases in the context of child welfare proceedings indicates that allegations of improperly obtained evidence in such proceedings are rare. Thus, extension of the exclusionary rule to such cases does not promise to add significant protection to . . . [f]ourth [a]mendment rights.” (Citation omitted; internal quotation marks omitted.) Id., 78-79; see also In re Mary S., 186 Cal. App. 3d 414, 418, 230 Cal. Rptr. 726 (1986) (“[a] parent at a dependency hearing cannot assert the
[f]ourth [a]mendment exclusionary rule, since ‘the potential harm to children in allowing them to remain in an unhealthy environment outweighs any deterrent effect which would result from suppressing evidenceunlawfully seized‘“), review denied, California Supreme Court (December 3, 1986).
The reasoning underlying the refusal to apply the exclusionary rule to child protection cases as set forth in these cases can be analogized to the present animal welfare action. Animals, like children, are part of a vulnerable class, and the primary purpose of the animal protection statute,
With respect to any benefit, or the deterrent effect, of applying the exclusionary rule in the present situation, we note that our Supreme Court previously has stated that there is “only a marginal deterrent effect . . . [in cases when] there [is] already a deterrent effect created by the application of the rule to any criminal proceedings, and because the use of evidence in a [civil] proceeding falls outside a [law enforcement] officer‘s zone of primary interest . . . that exclusion of such
We also emphasize that, in the absence of imminent harm to an animal, the typical procedure as set forth under
Accordingly, the trial court‘s ruling denying the defendant‘s motion in limine was legally and logically correct.
II
We now turn to the defendant‘s claim that her right to a jury trial under
Our resolution of this claim is governed by this court‘s decision in Delahunty v. Targonski, 158 Conn. App. 741, 746-50, 121 A.3d 727 (2015). In Delahunty, “[t]he sole claim raised by the plaintiff in her appeal [was] that she was denied her state constitutional right to a trial by a jury. Specifically, she argue[d] that the case was claimed for a jury trial, albeit by [the third-party defendants], and the denial of her right to a jury trial constituted structural error. She concede[d] that th[e] claim was not preserved and [sought] review under State v. Golding, supra, 213 Conn. 233. See, e.g., State v. Elson, 311 Conn. 726, 743, 91 A.3d 862 (2014) (bedrock principle of appellate jurisprudence that
“In State v. Golding, supra, 213 Conn. 239-40, our Supreme Court stated that ‘a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation . . . exists and . . . deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant‘s claim will fail. The appellate tribunal is free, therefore, to respond to the defendant‘s claim by focusing on whichever condition is most relevant in the particular circumstances.’ . . . Golding applies in civil as well as criminal cases.
“We are mindful that ‘[i]n the usual Golding situation, the defendant raises a claim on appeal which, while not preserved at trial, at least was not waived at trial. . . . [A] constitutional claim that has been waived does not satisfy the third prong of the Golding test because, in such circumstances, we simply cannot conclude that injustice [has been] done to either party . . . or that the alleged constitutional violation . . . exists and . . . deprived the defendant of a fair trial. . . . To reach a contrary conclusion would result in an ambush of the trial court by permitting the defendant to raise a claim on appeal that his or her counsel expressly had abandoned in the trial court.’ . . . State v. Reddick, 153 Conn. App. 69, 80-81, 100 A.3d 439, [cert.] dismissed, 314 Conn. 934, 102 A.3d 85 [2014], and cert.
“We recently discussed waiver in the context of a claim made pursuant to the Golding doctrine. ‘[W]aiver is [t]he voluntary relinquishment or abandonment—express or implied—of a legal right or notice. . . . In determining waiver, the conduct of the parties is of great importance. . . . [W]aiver may be effected by action of counsel. . . . When a party consents to or expresses satisfaction with an issue at trial, claims arising from that issue are deemed waived and may not be reviewed on appeal. . . . Thus, [w]aiver . . . involves the idea of assent, and assent is an act of understanding.
“‘It is well established that implied waiver . . . arises from an inference that the defendant knowingly and voluntarily relinquished the right in question. . . . Waiver does not have to be express . . . but may consist of acts or conduct from which waiver may be implied. . . . In other words, waiver may be inferred from the circumstances if it is reasonable to do so. . . . It also is well established that any such inference must be based on a course of conduct. . . . Relevant cases inform us that a criminal defendant may implicitly waive one or more of his or her fundamental rights. . . . In some circumstances, a waiver of rights must be knowing, voluntary and intelligent, and it must be expressly made. . . . In other circumstances, waiver can be implied . . . [and] [t]he waiver can be made by counsel . . . .‘” (Citations omitted; emphasis in original.) Delahunty v. Targonski, supra, 158 Conn. App. 746-49.
The court in Delahunty further stated: “In criminal cases, our Supreme Court has held that the defendant
“A party may forfeit the right to a jury trial in a civil case if the right is not asserted in a timely manner, may abandon the right to a jury trial if he or she chooses a forum that does not afford the right to a jury trial, or may waive the right to a jury trial. L & R Realty v. Connecticut National Bank, supra, 246 Conn. 10; see Anastasia v. Mitsock, Superior Court, judicial district of New Haven, Docket No. CV-05-4012156-S, 2006 WL 3759402 (December 1, 2006) (42 Conn. L. Rptr. 453, 454) (summary of law since 1899 that failure to claim civil action to jury within thirty days of return date or within ten days after an issue of fact has been joined amounts to voluntary and intentional relinquishment of right to jury trial); see also
“In the present matter, the plaintiff did not claim the case for a jury trial. The [third-party] defendants, filed the claim for a jury trial. On April 18, 2013, the [third-party defendants] filed a motion for a court trial and certified that a copy of their motion was sent to the plaintiff‘s counsel. In a handwritten notation dated April 29, 2013, the court granted the . . . motion by
This court explained further in Delahunty that “[t]he failure of the plaintiff to raise an objection at the start of the court trial, after receiving notice that the [third-party] defendant had moved for a court trial and that there had been no jury selection, combined with her active and full participation in the ensuing trial, indicate[d] that she had acquiesced to a court trial and correspondingly relinquished her right to a jury trial. She failed to object at the start of the court trial, when there was time to present the matter to the court, so that a possible error could be addressed and corrected if necessary. Instead, she remained silent and participated fully in the court trial. Only after receiving nominal damages did the plaintiff seek to exercise her right to a jury trial. Put another way, the plaintiff now seeks a proverbial second bite at the apple after receiving an award that was less than she had hoped for. We cannot endorse such a tactic, as it amounts to an ambush of both the trial court and the opposing party. We will not reward the plaintiff with a new trial based on a situation that was caused in part by her failure to raise an objection. . . . We conclude that, under these facts and circumstances, the plaintiff waived her right to a jury trial. As a result, her claim fails under the third prong of Golding.” (Citation omitted.) Id., 751-52.
As in Delahunty, the defendant in the present case never requested a jury trial. Moreover, she failed to
The judgment is affirmed.
In this opinion the other judges concurred.
Notes
“Recognizing these costs, we have repeatedly declined to extend the exclusionary rule to proceedings other than criminal trials. [Id., 909]; United States v. Janis, [supra, 428 U.S.] 447. For example, in United States v. Calandra, [supra, 414 U.S. 338] we held that the exclusionary rule does not apply to grand jury proceedings; in so doing, we emphasized that such proceedings play a special role in the law enforcement process and that the traditionally flexible, nonadversarial nature of those proceedings would be jeopardized by application of the rule. [Id., 343-46, 349-50]. Likewise, in United States v. Janis, [supra, 433] we held that the exclusionary rule did not bar the introduction of unconstitutionally obtained evidence in a civil tax proceeding because the costs of excluding relevant and reliable evidence would outweigh the marginal deterrence benefits, which, we noted, would be minimal because the use of the exclusionary rule in criminal trials already deterred illegal searches. [Id., 448, 454]. Finally, in [Immigration & Naturalization Service] v. Lopez-Mendoza, [supra, 468 U.S. 1032], we refused to extend the exclusionary rule to civil deportation proceedings, citing the high social costs of allowing an immigrant to remain illegally in this country and noting the incompatibility of the rule with the civil, administrative nature of those proceedings. [Id., 1050.]
“As in Calandra, Janis, and Lopez-Mendoza, we are asked to extend the operation of the exclusionary rule beyond the criminal trial context. We again decline to do so. Application of the exclusionary rule would both hinder the functioning of state parole systems and alter the traditionally flexible, administrative nature of parole revocation proceedings. The rule would provide only minimal deterrence benefits in this context, because application of the rule in the criminal trial context already provides significant deterrence of unconstitutional searches. We therefore hold that the federal exclusionary rule does not bar the introduction at parole revocation hearings of evidence seized in violation of parolees’ [f]ourth [a]mendment rights.” (Internal quotation marks omitted.) Pennsylvania Board of Probation & Parole v. Scott, supra, 524 U.S. 362-64.