author: Borden, J.

text:
    Louise Lowrey et al. v. Valley Forge Insurance Company
    (14500)
    Peters, C. J., Callahan, Borden, Berdon and Norcott, Js.

      Argued October 2
    decision released December 8, 1992

      John H. Hanks, for the appellants (plaintiffs).

      Jon S. Berk, with whom was Eileen McCarthy Geel, for the appellee (defendant).
   Borden, J.

The sole issue in this appeal is the validity of a policy exclusion from underinsured motorists coverage of a motor vehicle that is owned by, or furnished or available for the regular use of, the named insured. The plaintiffs, Louise Lowrey and Sebastiana Scionti, appeal from the judgment of the trial court denying their application to vacate a compulsory arbitration award that denied them underinsured motorists coverage under a policy issued by the defendant, Valley Forge Insurance Company. The plaintiffs claim that: (1) the applicable regulation does not validate the policy exclusion that appears in the underinsured motorist poliey issued by the defendant; and (2) the validity of the policy exclusion must be determined not by the regulation but by a statute, and the applicable statute does not authorize the exclusion. We affirm the judgment.

The facts are undisputed. In June, 1989, the plaintiffs were passengers in a car owned and operated by Alfreda Kozlowski, and suffered injuries as a result of a one car accident. Neither plaintiff was a resident of Kozlowski’s household. The defendant had issued an automobile insurance policy to Kozlowski covering the car and another car owned by her. The policy provided single-limit liability coverage for each car in the amount of $100,000, and underinsured motorist coverage for each car in the amount of $100,000. The defendant paid each plaintiff $50,000, thereby exhausting the liability coverage under the policy. The defendant, however, refused to pay the plaintiffs’ underinsured motorist claims.

The plaintiffs requested arbitration of their underinsured motorist coverage claims against the defendant. The arbitration panel, by a two to one vote, denied the claims. The trial court, in denying the plaintiffs’ application to vacate the award, held that the exclusion in Kozlowski’s policy was authorized by a state regulation and was therefore valid. This appeal followed.

The policy exclusion at issue in this case provides in pertinent part: “However, ‘uninsured motor vehicle’ does not include any vehicle or equipment: 1. Owned by or furnished or available for your regular use.” The regulation at issue provides in pertinent part: “The insurer’s obligations to pay may be made inapplicable ... (2) if the uninsured motor vehicle is owned by (A) the named insured or any relative who is a resident of the same household or is furnished for the regular use of any of the foregoing.” Regs., Conn. State Agencies § 38-175a-6 (c) (2) (A).

The plain language of the policy exclusion makes it clear that the exclusion applied to the Kozlowski vehicle. The vehicle involved in the accident was owned by Kozlowski, who was the named insured under the policy issued by the defendant. Thus, the vehicle was not an “uninsured motor vehicle” under the policy.

A comparison of the exclusion with the regulation makes it equally clear that the exclusion was authorized by the regulation and is therefore valid. “When an insurer seeks to limit its liability for uninsured or underinsured motorist coverage based on [a] regulation issued pursuant to [General Statutes (Rev. to 1989)] § 38-175c [now § 38a-336], it may do so only to the extent that the regulation expressly authorizes. Allstate Ins. Co. v. Ferrante, [201 Conn. 478, 483, 518 A.2d 373 (1986)]; see also Nicolletta v. Nationwide Ins. Co., 211 Conn. 640, 647-48, 560 A.2d 964 (1989). Similarly, where an insurer seeks to limit its liability based on the statute itself, rather than on the regulation, it should only be permitted to do so to the extent that the statute expressly authorizes. In order for a policy exclusion to be expressly authorized by [a] statute [or regulation], there must be substantial congruence between the statutory [or regulatory] provision and the policy provision.” (Internal quotation marks omitted.) Chmielewski v. Aetna Casualty & Surety Co., 218 Conn. 646, 674, 591 A.2d 101 (1991). That congruence is present here.

The regulation expressly permits an exclusion from underinsured motorist coverage for a vehicle that is owned by the named insured or by any resident relative of the named insured, or that is furnished for the regular use of the named insured or any such relative. The policy exclusion tracks the regulation by excluding such coverage for any vehicle that is owned by the named insured or by any resident relative of the named insured, or that is furnished or available for the regular use of the named insured or any such relative. We can perceive no incongruence between the regulation and the policy exclusion that would suggest that the policy exclusion was not authorized by the regulation. Compare Chmielewski v. Aetna Casualty & Surety Co., supra, 674-75.

Both the policy exclusion and the regulation on which it is based are fully consistent with the underlying rationale of underinsured motorist coverage, and with the difference between that coverage and liability coverage. In this connection, we agree with the reasoning of the Minnesota Supreme Court in two cases in which passengers in one car accidents unsuccessfully sought to recover underinsured motorists benefits from the carrier providing both liability and uninsured motorists coverage for the car involved in the accident.

“Liability insurance is purchased by an owner of a vehicle to protect passengers in that vehicle from the negligent driving of the owner or another driving the vehicle. Underinsured coverage, however, is intended to protect against a different type of risk, the risk that a negligent driver of another vehicle will have failed to purchase adequate liability insurance; that is, it is intended ‘to protect the named insured and other additional insureds from suffering an inadequately compensated injury caused by an accident with an inadequately insured automobile.’ Myers v. State Farm Mutual Automobile Ins. Co., 336 N.W.2d 288, 291 (Minn. 1983). An insured wishing to provide greater protection from his own negligence for himself and his passengers should purchase additional liability insurance coverage; allowing underinsured coverage in the instant case would, in essence, be allowing an individual to increase liability coverage by purchasing less expensive underinsured coverage.” Meyer v. Illinois Farmers Ins. Group, 371 N.W.2d 535, 537 (Minn. 1985).

“Underinsured motorist coverage is first-party coverage and, in that sense, the coverage follows the person not the vehicle. Here, however, the [plaintiffs] have already collected under the liability coverage of the insurer of the [Kozlowski] car. To now collect further under the same insurer’s underinsured motorist coverage would be to convert the underinsured motorist coverage into third-party insurance, treating it essentially the same as third-party liability coverage. The policy definition defining an ‘underinsured motor vehicle’ to exclude a vehicle owned by or regularly furnished or available to the named insured properly prevents this conversion of first-party coverage into third-party coverage.” Myers v. State Farm Mutual Automobile Ins. Co., supra.

Even if the regulation contained in § 38-175a-6 would validate the policy exclusion, the plaintiffs contend that the regulation does not govern this case because the policy exclusion in the insurance contract does not conform to the terms of,the exclusion authorized by General Statutes § 38a-336 (a) (1) (A), formerly § 38-175c. The statute provides in pertinent part: “No insurer shall be required to provide uninsured motorist coverage to (A) a named insured or relatives residing in his household when occupying, or struck as a pedestrian by, an uninsured or underinsured motor vehicle or a motorcycle that is owned by the named insured. . . ,” Contending that this language provides the sole basis for the defendant’s policy exclusion, the plaintiffs argue that the policy exclusion is invalid because neither of the plaintiffs was a named insured or a relative residing in the named insured’s household. We disagree.

The statute has its origins in Harvey v. Travelers Indemnity Co., 188 Conn. 245, 449 A.2d 157 (1982), in which we held invalid a policy provision that would have excluded uninsured motorist coverage to the plaintiff because he had been driving an uninsured vehicle that was owned by his father. In Harvey, we acknowledged that our interpretation of the governing regulatory principles as requiring uninsured motorist coverage in such circumstances could be criticized because “such a public policy discourages persons from obtaining liability insurance coverage and increases the risk of injury by uninsured motorists.” Id., 252-53. We responded: “But that plea should be directed to the legislature.” Id., 253.

The legislature, in turn, responded to such a plea in the next legislative session by enacting Public Acts 1983, No. 83-461, codified as § 38-175c (a) (1) (A) and (B), now § 38a-336 (a) (1) (A) and (B). We have recently recognized that this legislation was enacted “to limit to some extent the broad sweep of Harvey v. Travelers Indemnity Co., [supra, 248].” Travelers Ins. Co. v. Kulla, 216 Conn. 390, 400 n.7, 579 A.2d 525 (1990); see also 26 S. Proc., Pt. 9, 1983 Sess., p. 3055, remarks of Senator Wayne Baker; Conn. Joint Standing Committee Hearings, Insurance and Real Estate, 1983 Sess., February 28, 1983, p. 59, testimony of Michael P. Meotti. It is clear, therefore, that § 38a-336 (a) (1) (A) and (B) was not intended to address the circumstances of a case sueh as this where, unlike Harvey, the plaintiffs were not occupying an uninsured vehicle.

We know of no rule that the validation of one type of policy exclusion by a statute automatically disallows the validation of a different type of policy exclusion by a regulation. This case is governed not by General Statutes § 38a-336 but by § 38-175a-6 (c) (2) (A) of the regulations. See footnote 4. That regulation was promulgated, not under the statutory authority of § 38a-336, formerly § 38-175c, but under the general regulatory authority of the insurance commissioner pursuant to General Statutes § 38a-334 (a), formerly § 38-175a. Section 38a-334 (a) provides in pertinent part that the “insurance commissioner shall adopt regulations with respect to minimum provisions to be included in automobile liability insurance policies.... Such regulations shall relate to the insuring agreements, exclusions, conditions and other terms applicable to the bodily injury liability, property damage liability, medical payments and uninsured motorists coverages under such policies . . . .” (Emphasis added.)

Furthermore, § 38-175a-6 (c) (2) of the regulations, having been originally promulgated in 1975, long antedates the enactment in 1983 of § 38a-336 (a) (1) (A) and (B) and, indeed, was repromulgated after legislative review in 1986. The plaintiffs’ argument would in effect have us read the 1983 legislation as having impliedly repealed the preexisting regulation, despite our “rule disfavoring . . . the implied repeal of a regulation by a statute, especially where, as in the present case, the regulation at issue has been approved by the legislative regulation review committee.” Dugas v. Lumbermans Mutual Casualty Co., 217 Conn. 631, 641, 587 A.2d 415 (1991). We decline to invalidate the regulation that specifically authorizes the policy exclusion at issue in this case.

The judgment is affirmed.

In this opinion the other justices concurred.

       The defendant’s policy also provided uninsured motorists coverage. Under our law the statutes and regulations applicable to uninsured motorist coverage also apply to underinsured motorist coverage. McGlinchey v. Aetna Casualty & Surety Co., 224 Conn. 133, 134-35, 617 A.2d 445 (1992); Hotkowski v. Aetna Life & Casualty Co., 224 Conn. 145, 151, 617 A.2d 451 (1992); Covenant Ins. Co. v. Coon, 220 Conn. 30, 31 n.3, 594 A.2d 977 (1991). Because this case involves a claim for underinsured motorist coverage, we refer herein to that coverage.

       The plaintiffs appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

       The amendment to the policy provides in pertinent part: ‘ ‘Part C [Uninsured Motorists Coverage] is amended as follows . . . C. Exception 1. to the definition of ‘uninsured motor vehicle’ is replaced by the following: However, ‘uninsured motor vehicle’ does not include any vehicle or equipment: 1. Owned by or furnished or available for your regular use.” Under the definitions contained in the policy, “you” and “your” refer to the named insured, the spouse of the named insured if residing in the same household, and any other person related to the named insured by blood, marriage or adoption, including a ward or foster child, who resides in the same household.

       Section 38-175a-6 of the Regulations of Connecticut State Agencies provides: “minimum provision for protection against uninsured MOTORISTS
      “(a) coverage. The insurer shall undertake to pay on behalf of the insured all sums which the insured shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle because of bodily injury sustained by the insured caused by an accident involving the uninsured motor vehicle. This coverage shall insure the occupants of every motor vehicle to which the bodily injury liability coverage applies. ‘Uninsured motor vehicle’ includes a motor vehicle insured against liability by an insurer that is or becomes insolvent.
      “(b) arbitration. The insurance may provide but not require that the issues of liability as between the insured and the uninsured motorist, and the amount of damages, be arbitrated. The insurer may provide against being bound by any judgment against the uninsured motorist.
      “(c) exclusions. The insurer’s obligations to pay may be made inapplicable:
      “(1) To any claim which has been settled with the uninsured motorist without the consent of the insurer;
      “(2) if the uninsured motor vehicle is owned by
      “(A) the named insured or any relative who is a resident of the same household or is furnished for the regular use of any of the foregoing,
      “(B) a self insurer under any motor vehicle law, or
      “(C) any government or agency thereof;
      “(3) to pay or reimburse for workers’ compensation or disability benefits. “(d) limits of liability. The limit of the insurer’s liability may not be less than the applicable limits for bodily injury liability specified in subsection (a) of section 14-112 of the general statutes, except that the policy may provide for the reduction of limits to the extent that damages have been “(1) paid by or on behalf of any person responsible for the injury,
      “(2) paid or are payable under any workers’ compensation or disability benefits law, or
      “(3) paid under the policy in settlement of a liability claim. The policy may also provide that any direct indemnity for medical expense paid or payable under the policy or any amount of any basic reparations benefits paid or payable under the policy will reduce the damages which the insured may recover under this coverage and any payment under these coverages shall reduce the company’s obligation under the bodily injury liability coverage to the extent of the payment.
      “(e) recovery over. The insurer may require the insured to hold in trust all rights against third parties or to exercise such rights after the insurer has paid any claim, provided that the insurer shall not acquire by assignment, prior to settlement or judgment, its insured’s right of action to recover for bodily injury from any third party.”

       Indeed, the defendant’s policy in this case discloses a premium of $156 to $174 per car for $100,000 of liability coverage, and a premium of $29 to $33 for $100,000 of uninsured coverage.

       General Statutes § 38a-336, formerly § 38-175c, provides: “uninsured motorist coverage, (a) (1) Each automobile liability insurance policy shall provide insurance, herein called uninsured motorist coverage, in accordance with the regulations adopted pursuant to section 38a-334, with limits for bodily injury or death not less than those specified in subsection (a) of section 14-112, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles and underinsured motor vehicles and insured motor vehicles, the insurer of which becomes insolvent prior to payment of such damages, because of bodily injury, including death resulting therefrom. Each insurer licensed to write automobile liability insurance in this state shall provide uninsured motorists coverage with limits requested by the named insured upon payment of the appropriate premium, but the insurer shall not be required to provide such coverage with limits in excess of the limits of the bodily injury coverage of the policy issued to the named insured. No insurer shall be required to provide uninsured motorist coverage to (A) a named insured or relatives residing in his household when occupying, or struck as a pedestrian by, an uninsured or underinsured motor vehicle or a motorcycle that is owned by the named insured, or (B) to any insured occupying an uninsured or underinsured motor vehicle or motorcycle that is owned by such insured.
      “(2) Notwithstanding any provision of this section to the contrary, each automobile liability insurance policy issued or renewed on and after July 1, 1984, shall provide uninsured motorist coverage with limits for bodily injury and death equal to those purchased to protect against loss resulting from the liability imposed by law unless the insured requests in writing a lesser amount, but not less than the limits specified in subsection (a) of section 14-112. Such written request shall apply to all subsequent renewals of coverage and to all policies or endorsements which extend, change, supersede or replace an existing policy issued to the named insured, unless changed in writing by the insured.
      “(b) An insurance company shall be obligated to make payment to its insured up to the limits of the policy’s uninsured motorist coverage after the limits of liability under all bodily injury liability bonds or insurance policies applicable at the time of the accident have been exhausted by payment of judgments or settlements, but in no event shall the total amount of recovery from all policies, including any amount recovered under the insured’s uninsured motorist coverage, exceed the limits of the insured’s uninsured motorist coverage.
      “(c) Each automobile liability insurance policy issued on or after October 1,1971, which contains a provision for binding arbitration shall include a provision for final determination of insurance coverage in such arbitration proceeding. With respect to any claim submitted to arbitration on or after October 1, 1983, the arbitration proceeding shall be conducted by a single arbitrator if the amount in demand is forty thousand dollars or less or by a panel of three arbitrators if the amount in demand is more than forty thousand dollars.
      “(d) For the purposes of this section, an ‘underinsured motor vehicle’ means a motor vehicle with respect to which the sum of the limits of liability under all bodily injury liability bonds and insurance policies applicable at the time of the accident is less than the applicable limits of liability under the uninsured motorist portion of the policy against which claim is made under subsection (b) of this section.”

       The plaintiffs’ reliance on Nationwide Mutual Ins. Co. v. Pasion, 219 Conn. 764, 594 A.2d 468 (1991), is misplaced. The principal issue in that case was “whether a written request to reduce uninsured motorist coverage by one of two named insureds on an automobile liability insurance policy is sufficient to satisfy the writing required by General Statutes (Rev. to 1989) § 38-175c (a) (2) [now § 38a-336].” Id., 765. Although Pasión, on its facts, involved a claim by a passenger in a one car accident for underinsured motorists coverage against the liability insurer of that car, there was no indication in that case that the policy contained an exclusion similar to the exclusion in this case or that the insurer raised such an exclusion in response to the plaintiffs’ claim.

       General Statutes § 38a-334, formerly § 38-175a, provides: “minimum PROVISIONS IN AUTOMOBILE LIABILITY policies, (a) The insurance commissioner shall adopt regulations with respect to minimum provisions to be included in automobile liability insurance policies issued after the effective date of such regulations and covering private passenger motor vehicles, as defined in subsection (g) of section 38a-363, motor vehicles with a commercial registration, as defined in section 14-1, motorcycles, as defined in section 14-1, motor vehicles used to transport passengers for hire, motor vehicles in livery service, as defined in section 13b-101, and vanpool vehicles, as defined in section 14-1, registered or principally garaged in this state. Such regulations shall relate to the insuring agreements, exclusions, conditions and other terms applicable to the bodily injury liability, property damage liability, medical payments and uninsured motorists coverages under such policies, shall make mandatory the inclusion of bodily injury liability, property damage liability and uninsured motorists coverages and shall include a provision that the insurer shall, upon request of the named insured, issue or arrange for the issuance of a bond which shall not exceed the aggregate limit of bodily injury coverage for the purpose of obtaining release of an attachment.
      “(b) The commissioner, before adopting such regulations or any subsequent modifications or amendments thereof, shall consult with insurers licensed to write automobile liability insurance in this state and other interested parties. Nothing contained in such regulations or in sections 38a-334 to 38a-336, inclusive, 38a-338 and 38a-340 shall prohibit any insurer from affording broader coverage under a policy of automobile liability insurance than that required by such regulations.”


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    State of Connecticut v. James E. Milton
    (14516)
    Peters, C. J., Callahan, Berdon, Norcott and Katz, Js.
    Argued November 3
    decision released December 8, 1992

      J. Brendan Sharkey, special public defender, for the appellant (defendant).

      Richard F. Jacobson, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and John Smriga, assistant state’s attorney, for the appellee (state).
   Per Curiam.

The principal issue in this appeal is whether dismissal of criminal charges is required when state correctional officials, in violation of the Intrastate Detainer Act, General Statutes §§ 54-82c and 54-82d, fail to notify an inmate of the pendency of such charges and of his right to seek their speedy disposition. The defendant, James E. Milton, was charged by a substitute information with, inter alia, the crimes of possession of narcotics in violation of General Statutes § 21a-279 (a), possession of a sawed-off shotgun in violation of General Statutes § 53a-211 (a) and possession of a machine gun in violation of General Statutes § 53-202 (c). Following the defendant’s conviction by a jury on those three counts, the trial court sentenced him to a total effective term of twenty-two years imprisonment. The defendant appealed to the Appellate Court, which affirmed the judgment against him. State v. Milton, 26 Conn. App. 698, 603 A.2d 750 (1992). We granted the defendant’s petition for certification to appeal to this court, and now affirm the judgment of the Appellate Court.

Neither in the Appellate Court nor in this court has the defendant challenged the validity of any aspect of the trial that led to his conviction on the charges filed against him. His appeal has focused instead on the denial of his motion to dismiss those charges, which was premised on the failure of correctional officers, while he was incarcerated on other charges in correctional facilities at Somers, Enfield, Cheshire or Bridgeport, to notify him of his speedy trial rights under General Statutes § 54-82c.

The opinion of the Appellate Court recites the facts underlying the defendant's motion to dismiss. The defendant was arrested on the charges underlying the present conviction on July 15, 1989. State v. Milton, supra, 700. He began serving a sentence at Somers on an unrelated charge on December 20, 1989, and was thereafter transferred to other intrastate correctional facilities. Id. He filed the motion to dismiss the present charges on July 25,1990, while he was still serving his earlier sentence. Id.

When state correctional officials know that a prisoner in their custody is subject to an untried information, § 54-82c obligates them to notify the prisoner of the pendency of the charges against him and to inform him of his right to request a speedy disposition of those charges. The Appellate Court meticulously examined the relevant statutes, case law and facts, and concluded that the correctional officials had failed to comply with these statutory obligations. Id., 705-12. That conclusion is not at issue in the appeal in this court.

Having determined the existence of a statutory violation, the Appellate Court considered whether the trial court was required to dismiss the charges of which the correctional officials had failed to notify the defendant. The court conscientiously considered the inferences to be drawn from the express provision of a remedy of dismissal for a violation of General Statutes § 54-82d and the absence of a similar remedy in § 54-82c. Id., 712-13. It carefully examined our holding in State v. Herring, 210 Conn. 78, 89, 554 A.2d 686, cert. denied, 492 U.S. 912, 109 S. Ct. 3230, 106 L. Ed. 2d 579 (1989), in which we held, in similar circumstances, that violation of the notice provisions of the Interstate Detainer Act, General Statutes § 54-186, did not automatically require a dismissal of the relevant charges. As we did in State v. Herring, supra, the Appellate Court applied, by analogy, the balancing principles that the United States Supreme Court established in Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), as the appropriate remedy for a deprivation of the constitutional right to a speedy trial. State v. Milton, supra, 712-13. The Appellate Court then undertook a painstaking examination of the four factors that form the matrix of an analysis under Barker v. Wingo, supra, and concluded that, despite the serious violation of the defendant’s statutory rights to notice, the trial court had properly denied the defendant’s motion for dismissal. State v. Milton, supra, 713-16.

In his appeal in this court, the defendant continues to maintain that dismissal of the charges is the only proper remedy for a failure by correctional officials to notify an inmate of criminal charges that are pending against him. If dismissal is not automatically required, he does not, however, challenge the applicability of the Barker v. Wingo analysis that the Appellate Court undertook or the results of that court’s Barker v. Wingo analysis in the circumstances of this case.

As he did in the Appellate Court, the defendant makes a twofold argument to support his contention that dismissal of the charges is the only available remedy for a serious violation of § 54-82c. First, he infers that such a remedy is required because of the policy objectives of the Intrastate Detainer Act. Second, he distinguishes our invocation of the Barker v. Wingo test in State v. Herring, supra, on the ground that the injury he sustained by not receiving notice is categorically different from the injury inflicted on the defendant in State v. Herring, supra, who obtained belated notice.

Both of these arguments were fully considered and properly resolved against the defendant in the well reasoned opinion of the Appellate Court. Id., 712-13, and see especially n.6. Having examined the record on appeal and studied the briefs and the arguments of the parties, we conclude that the appeal in this case should be dismissed on the ground that certification was improvidently granted. It would serve no useful purpose for us to repeat the discussion contained in the Appellate Court’s opinion.

The appeal is dismissed.

       General Statutes § 21a-279 (a) provides: “penalty for illegal possession. SUBSTITUTION OF MEDICAL TREATMENT FOR CRIMINAL SANCTIONS, (a) Any person who possesses or has under his control any quantity of any narcotic substance, except as authorized in this chapter, for a first offense, may be imprisoned not more than seven years or be fined not more than fifty thousand dollars, or be both fined and imprisoned; and for a second offense, may be imprisoned not more than fifteen years or be fined not more than one hundred thousand dollars, or be both fined and imprisoned; and for any subsequent offense, may be imprisoned not more than twenty-five years or be fined not more than two hundred fifty thousand dollars, or be both fined and imprisoned.”
      General Statutes § 53a-211 (a) provides: “possession of a sawed-off shotgun or silencer: class D felony, (a) A person is guilty of possession of a sawed-off shotgun or a silencer when he owns, controls or possesses any sawed-off shotgun that has a barrel of less than eighteen inches or an overall length of less than twenty-six inches or when he owns, controls or possesses any silencer designed to muffle the noise of a firearm during discharge.”
      General Statutes § 53-202 (c) provides: “machine guns. . . .
      “(c) Any person who possesses or uses a machine gun for an offensive or aggressive purpose shall be fined not more than one thousand dollars or imprisoned not less than five years nor more than ten years or be both fined and imprisoned.”

       The trial court acquitted the defendant of two other counts of assault on a police officer.

       Certification to appeal was granted on the following issue: “Did the Appellate Court properly reject the defendant’s claim that the charges against him should have been dismissed based upon a violation of his rights under Connecticut General Statutes §§ 54-82c and 54-82d?” State v. Milton, 221 Conn. 921, 608 A.2d 687 (1992).

       General Statutes § 54-82c provides: “prisoner’s right to speedy trial on pending charges, (a) Whenever a person has entered upon a term of imprisonment in a correctional institution of this state and, during the continuance of the term of imprisonment, there is pending in this state any untried indictment or information against such prisoner, he shall be brought to trial within one hundred twenty days after he has caused to be delivered, to the state’s attorney or assistant state’s attorney of the judicial district or geographical area, in which the indictment or information is pending, and to the appropriate court, written notice of the place of his imprisonment and his request for final disposition to be made of the indictment or information. For good cause shown in open court, the prisoner or his counsel being present, the court may grant any necessary or reasonable continuance. The request of the prisoner shall be accompanied by a certificate of the warden, community correctional center administrator or other official having custody of the prisoner, stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner and any decisions of the parole board relating to the prisoner.
      “(b) The written notice and request for final disposition referred to in subsection (a) hereof shall be given or sent by the prisoner to the warden, community correctional center administrator or other official having custody of him, who shall promptly forward it together with the certifícate to the appropriate prosecuting official and court by registered or certified mail, return receipt requested.
      “(c) The warden, community correctional center administrator or other official having custody of the prisoner shall promptly inform him in writing of the source and contents of any untried indictment or information against him concerning which the warden, administrator or other official has knowledge and of his right to make a request for final disposition thereof.
      “(d) Escape from custody by the prisoner subsequent to his execution of the request for final disposition referred to in subsection (a) hereof shall void the request.”

       General Statutes § 54-82d provides: “dismissal of charges on failure to grant prisoner speedy trial. If an action is not assigned for trial within the period of time as provided in section 54-82c, no court of this state shall any longer have jurisdiction thereof, nor shall the untried indictment or information be of any further force or effect, and the court shall enter an order dismissing the same.”


author: Peters, C. J. Berdon, J.,

text:
    State of Connecticut v. Patrick Campbell
    (14130)
    Peters, C. J., Borden, Berdon, Norcott and Santaniello, Js.

      Argued September 30
    decision released December 15, 1992

      Monte P. Radler, assistant public defender, for the appellant (defendant).

      Paul J. Ferencek, assistant state’s attorney, with whom, on the brief, were Eugene J. Callahan, state’s attorney, and Bruce Hudock, assistant state’s attorney, for the appellee (state).
   Peters, C. J.

The principal issue in this appeal is the constitutionality of General Statutes (Rev. to 1987) § 17-245, now codified as § 17a-567, which requires a trial judge to follow the presentence report of the Whiting Forensic Institute (Whiting or the institute) advising against commitment of a convicted defendant to the institute. The defendant, Patrick Campbell, was charged with two counts of murder in violation of General Statutes § 53a-54a. The trial court, Dean, J., accepted his pleas of guilty to both counts under the Alford doctrine. Prior to sentencing, the defendant successfully moved for a psychiatric examination by the Whiting staff, as provided for in General Statutes (Rev. to 1987) § 17-244, now codified as § 17a-566, to determine his suitability for treatment at Whiting. The Whiting diagnostic unit’s subsequent report advised against the defendant’s commitment to Whiting and recommended a sentence in accordance with his conviction. The defendant filed a motion to correct on the ground that the commitment scheme in § 17-245 violated his constitutional rights. The trial court, Bingham, J., denied the motion, and sentenced the defendant to concurrent terms of imprisonment of forty-five years. The defendant appeals from the trial court’s denial of the motion to correct. We affirm.

According to the factual statement made by the state at the time the defendant pleaded guilty, the defendant killed his parents, Kenneth and Anna Mae Campbell, with a sledgehammer at their house in Darien on July 1,1987. After killing them, the defendant took his parents’ bodies to a wooded area behind the house, doused them with gasoline, and set them on fire.

Whiting undertook a psychiatric examination of the defendant in response to his motion for such an examination pursuant to § 17-244. In a preliminary diagnostic report, the courts diagnostic clinic of the department of mental health recommended that the examination pursuant to § 17-244 (a) begin as soon as bed space at Whiting became available. Whiting examined the defendant from November 8, 1988, through January 17, 1989. After comprehensive psychological testing, medical examination, review of reports of previously conducted psychological and psychiatric evaluations, and behavioral observation, Whiting issued its recommendation. Whiting advised the court to sentence the defendant in accordance with his conviction and not to commit him to Whiting because, although he was “dangerous to himself and others,” “[t]here is no evidence of psychosis.”

Before the court acted on Whiting's recommendation, on May 19,1989, the defendant filed a motion to correct, claiming that, insofar as § 17-245 precluded the trial court from rejecting the recommendation, the statute was unconstitutional and, therefore, “any disposition of the defendant’s case . . . would be illegal.” Specifically, the defendant argued that § 17-245 violated: (1) the separation of powers provision of the Connecticut constitution; (2) the due process provisions of the Connecticut and United States constitutions; and (3) the equal protection provisions of the Connecticut and United States constitutions.

After an evidentiary hearing, the court denied the defendant’s motion to challenge the recommendation of the Whiting report and to hold a further hearing to consider the validity of Whiting’s conclusions. The court upheld the constitutionality of § 17-245, and construed that provision to preclude the further hearing sought by the defendant. The court then sentenced the defendant to a term of incarceration.

In this appeal, the defendant reiterates the constitutional claims that he raised in the trial court. He continues to challenge the validity of § 17-245 under the constitutional law of separation of powers, due process and equal protection. He does not, however, maintain that he has been deprived of a prisoner’s right to receive mental health treatment. At stake here is solely his contention that he has a constitutional right to a judicial determination of whether, in lieu of incarceration, he should be committed to Whiting upon order of the trial judge at the time of sentencing, contrary to Whiting’s recommendation.

I

In ruling on the constitutional challenge to § 17-245 raised in the defendant’s motion to correct, the trial court interpreted § 17-245 to preclude a hearing on the accuracy of the Whiting report and to prohibit issuance of an order committing the defendant to Whiting in light of the report’s recommendation against such commitment. Our inquiry must begin with whether § 17-245, properly construed, embodies such a restriction, because only if it does will we need to address the defendant’s constitutional challenge to that provision. “Established wisdom counsels us to exercise self-restraint so as to eschew unnecessary determinations of constitutional questions.” (Internal quotation marks omitted.) McConnell v. Beverly Enterprises-Connecticut, Inc., 209 Conn. 692, 706, 553 A.2d 596 (1989).

The trial court looked to the specific language of § 17-245 to support its conclusion that the statute prohibits judicial supervision of a Whiting recommendation against commitment for treatment of a convicted criminal defendant. The pertinent statutory language distinguishes sharply between recommendations for commitment to Whiting and recommendations against commitment to Whiting. A recommendation for confinement at Whiting requires a further judicial hearing and authorizes the trial court thereafter either to sentence the defendant in accordance with the conviction or to order him committed to Whiting. By contrast, a recommendation against confinement at Whiting and for sentencing in accordance with a conviction requires that “the defendant shall be returned directly to the court for disposition.” General Statutes (Rev. to 1987) § 17-245 (a). Subsection (c) of § 17-245 provides explicitly that “no court may order [confinement in Whiting] if the report does not recommend confinement at the institute.” In light of these categorical legislative directives, we agree with the trial court’s construction of § 17-245 (a). See State v. Davis, 190 Conn. 327, 343, 461 A.2d 947, cert. denied, 464 U.S. 938, 104 S. Ct. 350, 78 L. Ed. 2d 315 (1983).

II

In light of our construction of § 17-245, we now proceed to the defendant’s constitutional attacks on § 17-245. A party challenging the constitutionality of a statute bears the heavy burden of establishing its unconstitutionality beyond a reasonable doubt. Perry v. Perry, 222 Conn. 799, 810, 611 A.2d 400 (1992); Connecticut Building Wrecking Co. v. Carothers, 218 Conn. 580, 590, 590 A.2d 447 (1991); Bartholomew v. Schweizer, 217 Conn. 671, 675, 587 A.2d 1014 (1991); Zapata v. Burns, 207 Conn. 496, 508, 542 A.2d 700 (1988). The court will indulge in every presumption in favor of the statute’s constitutionality and, when interpreting a statute, will search for an effective and constitutional construction that reasonably accords with the legislature's underlying intent. Bartholomew v. Schweizer, supra, 675-76.

A

The defendant’s first constitutional challenge alleges that § 17-245 violates the separation of powers provisions of the constitution of Connecticut, articles second and fifth. His separation of powers argument has two components: (1) § 17-245 impermissibly withholds sentencing discretion from the judiciary, and instead places that discretion in the executive branch; and (2) § 17-245 impermissibly delegates a legislative function to the executive branch by vesting Whiting with the authority to determine, without guidelines and without the possibility of review, what it means to “require custody, care and treatment.” We disagree with both arguments.

Because the powers of the three branches of government inevitably overlap, this court has “consistently held that the doctrine of the separation of powers cannot be applied rigidly”; Bartholomew v. Schweizer, supra, 676; Adams v. Rubinow, 157 Conn. 150, 155, 251 A.2d 49 (1968); and has “refused to find constitutional impropriety in a statute simply because it affects the judicial function . . . .” (Citations omitted; internal quotation marks omitted.) Bartholomew v. Schweizer, supra; Heslin v. Connecticut Law Clinic of Trantolo & Trantolo, 190 Conn. 510, 522, 461 A.2d 938 (1983). “A statute violates the constitutional mandate for a separate judicial magistracy only if it represents an effort by the legislature to exercise a power which lies exclusively under the control of the courts . . . .” (Citations omitted; internal quotation marks omitted.) Bartholomew v. Schweizer, supra.

In accordance with these principles, a two part inquiry has emerged to evaluate the constitutionality of a statute that is alleged to violate separation of powers principles by impermissibly infringing on the judicial authority. See University of Connecticut Chapter, AAUP v. Governor, 200 Conn. 386, 394-95, 512 A.2d 152 (1986); Heslin v. Connecticut Law Clinic of Trantolo & Trantolo, supra, 522; State v. Darden, 171 Conn. 677, 679, 372 A.2d 99 (1976). A statute will be held unconstitutional on those grounds if: (1) it governs subject matter that not only falls within the judicial power, but also lies exclusively within judicial control; or (2) it significantly interferes with the orderly functioning of the Superior Court’s judicial role. University of Connecticut Chapter, AAUP v. Governor, supra, 394-95; Heslin v. Connecticut Law Clinic of Trantolo & Trantolo, supra, 522-23; State v. Darden, supra.

Although the defendant makes no claim that § 17-245 interferes with the orderly functioning of the Superior Court, he does claim that § 17-245 involves a subject, the sentencing of criminal defendants, that lies exclusively within the judicial power. Although the judiciary unquestionably has power over criminal sentencing, the defendant’s claim fails because the judiciary does not have exclusive authority in that area. In State v. Darden, supra, 680, this court sustained the legislature’s creation of mandatory minimum sentences, holding that sentencing is not within the exclusive control of the judiciary and that there is no constitutional requirement that courts be given discretion in imposing sentences. Moreover, we have held it proper to construe broadly a remedial statute designed to curb the “ill effects stemming from wide judicial discretion in sentencing prisoners for similar offenses.” State v. Anderson, 220 Conn. 400, 404, 599 A.2d 738 (1991).

The defendant also contends that § 17-245 violates separation of powers principles because it unconstitutionally delegates sentencing authority to Whiting, an administrative agency. The defendant argues that § 17-245 is unconstitutionally vague and improperly authorizes an administrative body to devise the standards by which to determine who “require[s] custody, care and treatment at the institute.”

We begin our analysis of the defendant’s delegation claim with the proposition that “it is inherent in this separation [of powers], since the law-making function is vested exclusively in the legislative department, that the Legislature cannot delegate the law-making power to any other department or agency.” State v. Stoddard, 126 Conn. 623, 627, 13 A.2d 586 (1940). We have held, however, that the legislature may expressly authorize an administrative agency to “fill up the details” of a law. Id., 628. “In order to render admissible such delegation of legislative power, however, it is necessary that the statute declare a legislative policy, establish primary standards for carrying it out, or lay down an intelligible principle to which the administrative officer or body must conform . . . .’’Id.; see also Bottone v. Westport, 209 Conn. 652, 659, 553 A.2d 576 (1989).

Contrary to the defendant’s claim that § 17-245 contains constitutionally inadequate standards to guide Whiting’s determination of whether a defendant is a suitable candidate for commitment to the institute at the time of sentencing, that statutory provision is accompanied by guidelines to advise the Whiting staff of what it must consider in making its determination. Section 17-244 (d) (3) requires that the Whiting report contain, inter alia, “an opinion as to whether the diagnosis and prognosis demonstrate clearly that the defendant is actually dangerous to himself or others and requires custody, care and treatment at the institute.” By focusing on the “diagnosis and prognosis,” this provision directs the Whiting staff to base its recommendation on medical data and on its medical expertise. The provision also advises that the underlying medical information must “demonstrate clearly” that the defendant should be committed, giving the Whiting staff a standard by which it must measure the certainty of its conclusions.

The test for constitutionally sufficient standards to govern the exercise of delegated powers requires only that the standards be “as definit[e] as is reasonably practicable under the circumstances.” (Internal quotation marks omitted.) University of Connecticut Chapter, AAUP v. Governor, supra, 398. In that case, we rejected an argument that General Statutes § 4-85 (b), which authorized the governor to reduce budgetary allotments when there was “a change of circumstances” or when he “deems necessary,” contained constitutionally deficient standards to guide the governor’s exercise of delegated power. See also Wilson v. Connecticut Product Development Corporation, 167 Conn. 111, 120, 355 A.2d 72 (1974). We recognized the risk that excessive judicial insistence on specificity could “hamper the flexibility needed” for the governor to fulfill his duties. University of Connecticut Chapter, AAUP v. Governor, supra, 399. Applying the test in this case, we hold that the statutory standards contained in §§ 17-244 and 17-245 are as definite as is reasonably practicable and are, therefore, constitutionally sufficient to guide Whiting’s exercise of its delegated power. Because the exercise of discretion by Whiting involves medical diagnoses, it was reasonable for the legislature to set out in §§ 17-244 and 17-245 merely general guidelines to govern Whiting’s determination of a defendant’s need for care, custody and treatment at the institute. We, therefore, reject the defendant’s separation of powers claims.

B

The defendant argues, in his second constitutional claim, that § 17-245 violates his right to due process under the state and federal constitutions. Specifically, the defendant urges reconsideration of State v. Davis, supra, where we held that, under federal due process principles, “no constitutionally protected liberty interest was implicated by the trial court’s refusal to grant the defendant’s request for a hearing on the report filed by the Whiting Forensic Institute.” Id., 341. Moreover, the defendant maintains that § 17-245 unconstitutionally deprives him of the right to submit information to correct or contest presentence material submitted to the trial court by the state. We are unpersuaded.

Due process analysis begins with the identification of the life, liberty or property interest at stake. In this case, the defendant has alleged that he has a liberty interest that entitles him to a judicial determination of his need for mental health treatment at Whiting in lieu of incarceration. State v. Davis, supra, 336. To determine whether § 17-245 unconstitutionally deprives him of that interest, we must decide whether the defendant has established that: (1) the liberty interest falls within the protection of the due process clause; (2) he has been deprived of that interest; and (3) the deprivation has occurred without due process of law. Tedesco v. Stamford, 222 Conn. 233, 241, 610 A.2d 574 (1992); see also Morrissey v. Brewer, 408 U.S. 471, 481, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972); State v. Davis, supra, 336-37.

“Liberty interests protected by the Fourteenth Amendment may arise from two sources—the Due Process Clause itself and the laws of the States.” (Internal quotation marks omitted.) State v. Davis, supra, 337. We first consider whether the defendant has a constitutionally protected liberty interest derived from the due process clause.

As a general matter, “given a valid conviction, the criminal defendant has been constitutionally deprived of his liberty to the extent that the State may confine him ... so long as the conditions of confinement do not otherwise violate the Constitution.” Meachum v. Fano, 427 U.S. 215, 224, 96 S. Ct. 2532, 49 L. Ed. 2d 451, reh. denied, 429 U.S. 873, 97 S. Ct. 191, 50 L. Ed. 2d 155 (1976). As long as the confinement is otherwise constitutional, therefore, a defendant has no due process right to be sentenced to a particular type of facility. State v. Davis, supra.

The defendant maintains, however, that his confinement in prison does “otherwise violate the constitution” because it violates the eighth amendment guarantee of “reasonable medical treatment, including psychiatric care.” This argument cannot succeed, however, because it assumes that access to psychiatric care requires immediate commitment to Whiting rather than incarceration. Inmates committed to the commissioner of correction may avail themselves of voluntary commitment for psychiatric treatment pursuant to General Statutes § 17a-513. As the defendant conceded at oral argument, if the defendant were improperly denied such treatment, he could seek relief in a petition for a writ of habeas corpus. The defendant’s incarceration, therefore, accords with eighth amendment requirements and does not “otherwise violate the Constitution.” Meachum v. Fano, supra, 224. Accordingly, he has no liberty interest derived from the due process clause in obtaining treatment at Whiting instead of being incarcerated.

We next consider the defendant’s contention that state law creates such a liberty interest. In order to prevail, the defendant must show that the state statute creates a right to treatment at Whiting instead of imprisonment or creates a justifiable expectation that such treatment will be afforded to him. State v. Davis, supra, 340. Section 17-245 authorizes the Whiting officials who issue the report to recommend any one of four options: commitment to Whiting; sentencing in accordance with the conviction; probation; or probation conditioned on receipt of outpatient psychiatric treatment. The trial court thereafter has discretion to reject or accept the Whiting recommendation, unless it advises against commitment, in which case the recommendation is binding. In light of the number and variety of these courses of action that may be taken by the Whiting staff and the trial court, we hold that § 17-245 does not create either a right to treatment at Whiting in lieu of incarceration or a justifiable expectation of receiving such treatment. This holding comports with our decision in State v. Davis, supra, where we determined that §§ 17-244 and 17-245 neither create a right to be placed either in outpatient therapy or in Whiting nor give rise to a justifiable expectation that one of these two options will be chosen.

Because the defendant has no liberty interest in obtaining mental health treatment at Whiting in lieu of imprisonment, we conclude that his due process claim has no merit. We hold, therefore, that although the legislature may choose, as a matter of policy, to afford a hearing to those excluded from Whiting at the presentence stage, such a hearing is not constitutionally required.

C

Finally, the defendant claims that § 17-245 violates the equal protection clause of the fourteenth amendment to the federal constitution because it arbitrarily treats convicted defendants who have not yet been sentenced differently from civilians and sentenced defendants regarding mental health treatment. We disagree.

“The Equal Protection Clause of the Fourteenth Amendment commands that no State shall deny to any person within its jurisdiction the equal protection of the laws, which is essentially a direction that all persons similarly situated should be treated alike.” (Internal quotation marks omitted.) Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439, 105 S. Ct. 3249, 87 L. Ed. 2d 313 (1985); Franklin v. Berger, 211 Conn. 591, 596, 560 A.2d 444 (1989); Darak v. Darak, 210 Conn. 462, 473, 556 A.2d 145 (1989). Social and economic legislation will generally be held to violate the equal protection clause only if the classification drawn by the statute is not rationally related to a legitimate state interest. See Cleburne v. Cleburne Living Center, Inc., supra, 439-40. The general rule gives way if a state law affects fundamental rights guaranteed by the federal constitution, or invidiously discriminates against a suspect class, and courts will sustain such laws only if they are narrowly tailored to serve a compelling state interest. See id., 440.

The defendant argues that strict scrutiny is the appropriate standard under which to review the subject classification because § 17-245 affects his fundamental rights to medical and psychiatric care under the eighth amendment, to life under the due process clause, and to a judicial determination of mental illness. We have rejected, supra, the defendant’s contention that he possesses the latter two rights, and they, therefore, cannot serve as the basis for undertaking strict scrutiny review of the allegedly unconstitutional classification drawn by § 17-245. Moreover, we decline to address the defendant’s argument that the alleged fundamental eighth amendment right to psychiatric care entitles him to a strict scrutiny review of the classification because we conclude that, regardless of the standard of review, the defendant’s claim fails.

First, the defendant claims that, under § 17-245 and General Statutes (Rev. to 1987) § 17-251, now codified as § 17a-570, convicts who have not yet been sentenced, the class of which he is a member, have the opportunity to be committed to Whiting in lieu of incarceration and, upon release from the institute, to be returned to the community regardless of the original sentence. By contrast, under General Statutes (Rev. to 1987) § 17-194e, now codified as § 17a-515, prisoners who are committed to a mental health center after sentencing must be returned to the custody of the commissioner of correction upon release from commitment. Although these provisions afford different treatment to different classes of individuals, the defendant, as a convict who has not yet been sentenced, is a member of the advantaged class. Because he is not aggrieved by this disparity in treatment, he has no standing to challenge it. See Monroe v. Horwitch, 215 Conn. 469, 473, 576 A.2d 1280 (1990) (requiring claimant to make a “colorable claim of direct injury he has suffered or is likely to suffer, in an individual or representative capacity”); Shaskan v. Waltham Industries Corporation, 168 Conn. 43, 49, 357 A.2d 472 (1975).

Second, the defendant compares civilians subject to commitment under General Statutes (Rev. to 1987) §§ 17-177 and 17-178, now codified as §§ 17a-497 and 17a-498, with sentenced prisoners seeking voluntary-commitment under General Statutes (Rev. to 1987) § 17-194c, now codified as § 17a-513. Because the defendant is not a member of either of these classes of persons, however, he has no standing to challenge any disparity in their treatment. Monroe v. Horwitch, supra; cf. Holland v. Illinois, 493 U.S. 474, 476-77, 110 S. Ct. 803, 107 L. Ed. 2d 905, reh. denied, 494 U.S. 1050, 110 S. Ct. 1514, 108 L. Ed. 2d 650 (1990) (holding that a white criminal defendant has standing to bring equal protection challenge to exclusion of black jurors from petit jury only because of the defendant’s sixth amendment right to an impartial jury).

Finally, the defendant asserts that, because § 17-245 allows the trial court discretion to reject the Whiting report if it recommends commitment at the institute, principles of equal protection require that the trial court have similar authority to reject a Whiting recommendation against commitment. We understand this as an argument that § 17-245 unconstitutionally affords different treatment to the class of those for whom Whiting recommends in favor of commitment as compared to the class of those for whom Whiting recommends against commitment.

We disagree with the defendant’s claim because the two groups are not similarly situated, as is required in an equal protection claim. Darak v. Darak, supra, 473. When Whiting recommends in favor of commitment of a defendant, the defendant’s constitutionally protected liberty interests are implicated because an involuntary commitment works “ ‘a “major change in the conditions of confinement” amounting to a “grievous loss”. . . .’ ” See Vitek v. Jones, 445 U.S. 480, 492, 100 S. Ct. 1254, 63 L. Ed. 2d 552 (1980). Involuntary commitment to a mental hospital involves “more than a loss of freedom . . . [and] ‘can engender adverse social consequences. . . .’ [or] ‘ “stigma.” ....’” Id., quoting Addington v. Texas, 441 U.S. 418, 426, 99 S. Ct. 1804, 60 L. Ed. 2d 323 (1979). In contrast, Whiting’s recommendation against commitment of a defendant to the institute implicates no constitutionally protected liberty interests. See State v. Davis, supra, 341. This fundamental distinction between the two groups makes the defendant’s equal protection claim unsustainable.

The judgment is affirmed.

In this opinion Borden, Norcott and Santaniello, Js., concurred.

Berdon, J.,

dissenting. I disagree with the court’s determination today of the contours of the liberty interests protected by the due process clause of the United States constitution. This case involves the right of the defendant, Patrick Campbell, to be heard regarding his eligibility to be sentenced to Whiting Forensic Institute (Whiting), a facility established for the care and treatment of mentally ill persons. General Statutes § 17a-561.

The defendant, who was twenty years old at the time, pleaded guilty to the murder of his parents. On July 1, 1987, the defendant attempted to charge a long distance telephone call to his parents at their residence in Darien. When they refused to accept the charge, he became angry, hitchhiked from Danbury to Darien, broke into the family residence and hid in the basement while his parents were at work. When his parents returned home, the father went into the basement. The defendant attacked his father from behind and killed him by repeatedly striking him with an axe and a sledgehammer. When the mother went to the basement to look for her husband, the defendant also struck and killed her. The defendant removed his parents’ bodies to a wooded area, drenched the corpses with gasoline and set them on fire.

Prior to sentencing, the defendant was examined by the Whiting staff and was found to be ineligible for treatment there. The defendant, in challenging the report, sought a hearing before the trial court to determine whether he was “mentally ill and dangerous to himself or others and . . . require[d] custody, care and treatment at the institute . . . .” General Statutes § 17a-567 (c). If he had been found eligible for treatment at Whiting, the defendant would have requested that the trial court sentence him in accordance with his conviction and order confinement at Whiting. General Statutes § 17a-567. The trial court denied the defendant’s request for a hearing and, without an opportunity to challenge the Whiting report, the defendant was sentenced in accordance with his conviction.

This court’s decision on the issue of due process is predicated on State v. Davis, 190 Conn. 327, 341, 461 A.2d 947, cert. denied, 464 U.S. 938, 104 S. Ct. 350, 78 L. Ed. 2d 315 (1983), which held that “no constitutionally protected liberty interest was implicated by the trial court’s refusal to grant the defendant’s request for a hearing on the report filed by the Whiting Forensic Institute.” I believe Davis was wrongly decided. Although the liberty interest protected by the due process clause of the United States constitution is narrowly construed by the majority of the United States Supreme Court, I would find that the defendant has such an interest that originates under both the United States constitution and under state law. Meachum v. Fano, 427 U.S. 215, 225-29, 96 S. Ct. 2532, 49 L. Ed. 2d 451 (1976).

I

This court first concludes that the defendant “has no liberty interest derived from the due process clause in obtaining treatment at Whiting instead of being incarcerated.” Majority opinion, p. 183. I disagree.

In Gardner v. Florida, 430 U.S. 349, 358, 97 S. Ct. 1197, 51 L. Ed. 2d 393 (1977), the United States Supreme Court held that “it is now clear that the sentencing process, as well as the trial itself, must satisfy the requirements of the Due Process Clause. Even though the defendant has no substantive right to a particular sentence within the range authorized by statute, the sentencing is a critical stage of the criminal proceeding. . . . The defendant has a legitimate interest in the character of the procedure which leads to the imposition of sentence even if he may have no right to object to a particular result of the sentencing process. ” (Citation omitted; emphasis added.) It is therefore clear that sentencing, like the criminal proceedings that precede it, implicates a liberty interest protected by the due process clause itself. The Whiting report is a “sentencing aid to the court”; State v. Davis, supra, 341; that plays an important role in the sentencing of defendants like Patrick Campbell. Accordingly, the defendant is entitled to a hearing before the trial court for the determination of whether he meets Whiting’s requirements.

Relying on Meachum v. Fano, supra, this court holds that the Whiting report does not implicate a liberty interest protected by the due process clause. In Meachum v. Fano, supra, 224, the United States Supreme Court stated that “given a valid conviction, the criminal defendant has been constitutionally deprived of his liberty.... The conviction has sufficiently extinguished the defendant’s liberty interest to empower the State to confine him in any of its prisons.” The court’s reliance on Meachum v. Fano, supra, however, is misplaced because the defendant in that case had already been sentenced and imprisoned; he sought only to require a hearing before the state moved him from one institution to another. In a later case, Vitek v. Jones, 445 U.S. 480, 493, 100 S. Ct. 1254, 63 L. Ed. 2d 552 (1980), Justice White, who also wrote the majority opinion in Meachum v. Fano, supra, clarified that it is “a valid criminal conviction and prison sentence [that] extinguish a defendant’s right to freedom from confinement. . . . Such a conviction and sentence sufficiently extinguish a defendant’s liberty to ‘empower the State to confine him in any of its prisons.’ ” (Citation omitted; emphasis added.) Whiting’s report and recommendation are an important part of the sentencing process itself, a process to which due process protections apply.

II

I also believe that a liberty interest arises under the state statutory scheme authorizing Whiting. Section 17a-561 provides in part: “The Whiting Forensic Institute shall exist for the care and treatment of . . . persons convicted of any offense enumerated in section 17a-566 who, after examination by the staff of the diagnostic unit of the institute as herein provided, are determined to be mentally ill and dangerous to themselves or others and to require custody, care and treatment at the institute . . . .” Murder, “an offense for which the penalty may be imprisonment in the Connecticut Correctional Institution at Somers” is among the offenses enumerated in § 17a-566. Under the statutory scheme, a defendant who is found to be mentally ill and dangerous to himself or others, meets the Whiting criteria and should be sentenced to Whiting.

The legislative history of the Whiting statutory scheme, which establishes Whiting as a sentencing alternative, reinforces the expectation that a defendant who meets the criteria will be sentenced to Whiting. “Strong support for a hospital to treat mentally ill persons who commit crimes . . . was demonstrated before the legislature. Among those who appeared before the legislature in 1957 to urge the adoption of legislation to establish Whiting was former Chief Justice William M. Maltbie, who urged that there be a hospital for a person ‘who has committed a crime because of some mental weakness perhaps, because of some emotional disturbance or because there is in his mind some fence which the ordinary practices of cure of the criminal cannot by any possibility reach.’ Conn. Joint Standing Committee Hearings, General Law, 1957 Sess., Pt. 2, p. 511.” In re Michael B., 41 Conn. Sup. 229, 242, 566 A.2d 446 (1989).

Under the statutory scheme of Whiting, a defendant who is mentally ill and dangerous has a justifiable expectation of confinement at Whiting and therefore a liberty interest protected by the due process clause. Section 17a-561 furnishes a strong basis for believing that the Whiting staff will recommend commitment if a defendant meets the criteria listed above. Nevertheless, the statute does not provide a hearing for the defendant to test the conclusions of Whiting. The fact that the statutory scheme does not provide adequate procedural protections to ensure that the Whiting staff follow the purpose of § 17a-561 does not make the defendant’s expectation of due process unjustifiable. Due process rights created by statute may not be defined by, or conditioned on, the legislature’s choice of procedures for their deprivation. Cleveland Board of Education v. Loudermill, 470 U.S. 532, 541, 105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985).

Accordingly, I would construe § 17a-567 to require a hearing on the Whiting report in order to determine whether the defendant is “mentally ill and dangerous to himself or others and . . . requirefs] custody, care and treatment at [Whiting].” General Statutes § 17a-567 (c). If the trial court found that the defendant met the requirements for Whiting, I would order that he be confined to Whiting in accordance with § 17a-567 (c). I would also find that portion of § 17a-567 (c) that provides “no court may order such confinement if the [Whiting] report does not recommend confinement at the institute” to be unconstitutional as violative of the due process clause of the United States constitution.

I therefore dissent.

       General Statutes (Rev. to 1987) § 17-245, now recodified as § 17a-567, provides: “(a) If the report recommends that the defendant be sentenced in accordance with the conviction, placed on probation by the court or placed on probation by the court with the requirement, as a condition of such probation, that he receive outpatient psychiatric treatment, the defendant shall be returned directly to the court for disposition. If the report recommends sentencing in accordance with the conviction and confinement in the institute for custody, care and treatment, then during the period between the submission of the report and the disposition of the defendant by the court such defendant shall remain at the institute and may receive such custody, care and treatment as is consistent with his medical needs.
      “(b) If the report recommends confinement at the institute for custody, care and treatment, the court shall set the matter for a hearing not later than fifteen days after receipt of the report. Any evidence, including the report ordered by the court, regarding the defendant’s mental condition may be introduced at the hearing by either party. Any staff member of the diagnostic unit who participated in the examination of the defendant and who signed the report may testify as to the contents of the report. The defendant may waive the court hearing.
      “(c) If at such hearing the court finds the defendant is not in need of custody, care and treatment at the institute, it shall sentence him in accordance with the conviction or place him on probation. If the court finds that such person is in need of outpatient psychiatric treatment, it may place him on probation on condition that he receive such treatment. If the court finds such person to be mentally ill and dangerous to himself or others and to require custody, care and treatment at the institute, it shall sentence him in accordance with the conviction and order confinement in the institute for custody, care and treatment provided no court may order such confinement if the report does not recommend confinement at the institute. The defendant shall not be subject to custody, care and treatment under this part beyond the maximum period specified in the sentence.” (Emphasis added.)

       General Statutes (Rev. to 1987) § 17-239, now codified as § 17a-561, provides: “The Whiting Forensic Institute shall exist for the care and treatment of (1) mentally ill patients, confined in facilities under the control of the department of mental health, who require care and treatment under maximum security conditions, (2) persons convicted of any offense enumerated in section 17-244 who, after examination by the staff of the diagnostic unit of the institute as herein provided, are determined to be mentally ill and dangerous to themselves or others and to require custody, care and treatment at the institute and (3) inmates in the custody of the commissioner of correction who are transferred in accordance with sections 17-194b to 17-194g, inclusive, and who require custody, care and treatment at the institute.”

       General Statutes § 53a-54a provides in pertinent part: “(a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person . . . .”

        North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

       General Statutes (Rev. to 1987) § 17-244, now codified as § 17a-566, provides: “(a) Except as provided in section 17-255 any court prior to sentencing a person convicted of an offense for which the penalty may be imprisonment in the Connecticut Correctional Institution at Somers, or of a sex offense involving (1) physical force or violence, (2) disparity of age between an adult and a minor or (3) a sexual act of a compulsive or repetitive nature, may if it appears to the court that such person is mentally ill and dangerous to himself or others, upon its own motion or upon request of any of the persons enumerated in subsection (b) of this section and a subsequent finding that such request is justified, order the commissioner to conduct an examination of the convicted defendant by qualified personnel of the institute. Upon completion of such examination the examiner shall report in writing to the court. Such report shall indicate whether the convicted defendant should be committed to the diagnostic unit of the institute for additional examination or should be sentenced in accordance with the conviction. Such examination shall be conducted and the report made to the court not later than fifteen days after the order for the examination. Such examination may be conducted at a correctional facility if the defendant is confined or it may be conducted on an outpatient basis at the institute or other appropriate location. If the report recommends additional examination at the diagnostic unit, the court may, after a hearing, order the convicted defendant committed to the diagnostic unit of the institute for a period not to exceed sixty days, except as provided in section 17-245 provided the hearing may be waived by the defendant. Such commitment shall not be effective until the director certifies to the court that space is available at the diagnostic unit. While confined in said diagnostic unit, the defendant shall be given a complete physical and psychiatric examination by the staff of the unit and may receive medication and treatment without his consent. The director shall have authority to procure all court records, institutional records and probation or other reports which provide information about the defendant.
      “(b) The request for such examination may be made by the state’s attorney or assistant state’s attorney who prosecuted the defendant for an offense specified in this section, or by the defendant or his attorney in his behalf. If the court orders such examination, a copy of the examination order shall be served upon the defendant to be examined.
      “(c) Upon completion of the physical and psychiatric examination of the defendant, but not later than sixty days after admission to the diagnostic unit, a written report of the results thereof shall be filed in quadruplicate with the clerk of the court before which he was convicted, and such clerk shall cause copies to be delivered to the state’s attorney, to counsel for the defendant and to the office of adult probation.
      “(d) Such report shall include the following: (1) A description of the nature of the examination; (2) a diagnosis of the mental condition of the defendant; (3) an opinion as to whether the diagnosis and prognosis demonstrate clearly that the defendant is actually dangerous to himself or others and requires custody, care and treatment at the institute; and (4) a recommendation as to whether the defendant should be sentenced in accordance with the conviction, sentenced in accordance with the conviction and confined in the institute for custody, care and treatment, placed on probation by the court or placed on probation by the court with the requirement, as a condition to probation, that he receive outpatient psychiatric treatment.”

       The defendant appeals directly to this court pursuant to General Statutes § 51-199 (b) (3).

       General Statutes (Rev. to 1987) § 17-245 also authorizes the trial court to place a defendant on probation with or without the condition that he receive outpatient psychiatric treatment. Those potential alternative dispositions, however, are not relevant in this case.

       Article second of the constitution of Connecticut provides: “The powers of government shall be divided into three distinct departments, and each of them confided to a separate magistracy, to wit, those which are legislative, to one; those which are executive, to another; and those which are judicial, to another.”
      Article fifth of the constitution of Connecticut, as amended by article XX, § 1, of the amendments to the constitution of Connecticut, provides in pertinent part: “Sec. 1. The judicial power of the state shall be vested in a supreme court, an appellate court, a superior court, and such lower courts as the general assembly shall, from time to time, ordain and establish. The powers and jurisdiction of these courts shall be defined by law.”

       We are unpersuaded by three California Supreme Court cases on which the defendant relies for a contrary result. The defendant has cited People v. Navarro, 7 Cal. 3d 248, 497 P.2d 481, 102 Cal. Rptr. 137 (1972); Esteybar v. Municipal Court, 5 Cal. 3d 119, 485 P.2d 1140, 95 Cal. Rptr. 524 (1971); People v. Tenorio, 3 Cal. 3d 89, 473 P.2d 993, 89 Cal. Rptr. 249 (1970). Of these, only People v. Navarro, supra, involved a separation of powers claim relating to sentencing. In that case, the California court determined that a state statute violated the state constitution because it conferred initial discretion on a court to sentence a defendant to a drug rehabilitation program, yet authorized the prosecutor thereafter to disapprove such a commitment. Id., 259. The California statute thus conditioned an otherwise broad grant of discretion to the judiciary on approval by a person who is not only a member of the executive branch, but also an adversary. The provisions of General Statutes (Rev. to 1987) § 17-245 do not manifest a similar encroachment on the exercise of judicial discretion.

       Because the defendant has provided no independent analysis under the state constitution, we do not review his state due process claim. State v. Kyles, 221 Conn. 643, 657 n.9, 607 A.2d 355 (1992); State v. Lewis, 220 Conn. 602, 608 n.3, 600 A.2d 1330 (1991).

       The fourteenth amendment to the United States constitution provides in pertinent part: “No State shall . . . deprive any person of life, liberty or property, without due process of law . . . .”

       Because the defendant has not analyzed the state constitution’s due process clause independently of its federal counterpart, we remain bound, as we were in State v. Davis, 190 Conn. 327, 461 A.2d 947, cert. denied, 464 U.S. 938, 104 S. Ct. 350, 78 L. Ed. 2d 315 (1983), to apply federal law. We conclude thatSfaie v. Davis, supra, accurately applied federal law, and we reaffirm it here.

       An apparently typographical error in the defendant’s brief misstates that statute’s section number.

       We reject the defendant’s suggestion that a life, rather than a liberty, interest is at stake in this case. The defendant has not alleged in this court or elsewhere that his receipt of treatment at Whiting in lieu of incarceration is necessary for his very survival. Accordingly, his interest, as was the defendant’s interest in State v. Davis, 190 Conn. 327, 336, 461 A.2d 947, cert. denied, 464 U.S. 938, 104 S. Ct. 350, 78 L. Ed. 2d 315 (1983), is properly characterized as a liberty interest.

       The eighth amendment to the United States constitution provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

       Additionally, the trial court has discretion under General Statutes (Rev. to 1987) § 17-244 to decide whether to order an initial psychiatric examination of a defendant. See State v. Gates, 198 Conn. 397, 404, 503 A.2d 163 (1986).

       The defendant advances a related due process claim that General Statutes (Rev. to 1987) § 17-245 violates his constitutional right to present evidence to contradict the Whiting report. Although the federal constitution does guarantee certain limited procedural safeguards against receiving a sentence based on material misinformation; A. Spinella, Connecticut Criminal Procedure (1985) p. 748; that guarantee is inapplicable here because the Whiting recommendation against commitment in lieu of incarceration is not a sentence. We therefore read this claim as, in effect, a claim that he has a right to a hearing on the WTiiting report. Because we hold that the defendant has no liberty interest in obtaining mental health treatment at Whiting in lieu of incarceration and, therefore, is entitled to no process before being denied such treatment, we reject his contention that he is constitutionally entitled to an opportunity to present evidence at a hearing to contest the report.

       The defendant’s due process argument reflects a misunderstanding of the line of cases on which he relies for the proposition that he is entitled to a hearing on the Wanting report. We note that “[i]t is significant that this defendant ... is not the focus of any involuntary deprivation of a right, but rather is himself voluntarily seeking the benefit of the statute.” State v. Davis, 190 Conn. 327, 337, 461 A.2d 947, cert. denied, 464 U.S. 938, 104 S. Ct. 350, 78 L. Ed. 2d 315 (1983). The primary federal case on which the defendant relies in support of his due process claim is Vitek v. Janes, 445 U.S. 480, 488-90, 100 S. Ct. 1254, 63 L. Ed. 2d 552 (1980), which held that due process requires a hearing before state officials may involuntarily transfer a prisoner from a prison to a state mental hospital. That holding, however, was driven by the perceived stigma associated with mental health treatment. Indeed, although involuntary transfer from one prison to another prison implicates no liberty interest; Meachum v. Fano, 427 U.S. 215, 225, 96 S. Ct. 2532, 49 L. Ed. 2d 451, reh. denied, 429 U.S. 873, 97 S. Ct. 191, 50 L. Ed. 2d 155 (1976); and voluntary commitment to a mental health center implicates no liberty interest; State v. Davis, supra, 337-41; an involuntary transfer of a prisoner to a mental health treatment center does implicate a liberty interest because that latter transfer works “ ‘a “major change in the conditions of confinement” amounting to a “grievous loss”. . . ” Vitek v. Jones, supra, 492; Chesney v. Adams, 377 F. Sup. 887, 893 (D. Conn. 1974). Despite his position to the contrary, the cases cited by the defendant turn on the supposed undesirability of mental health treatment and the potentially adverse, stigmatizing social consequences of it. They are, therefore, inapposite.

       The fourteenth amendment to the United States constitution provides in pertinent part; “No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.”

       The defendant has made no claim that convicts who have not yet been sentenced are a suspect class, subject to historical discrimination, and thereby requiring heightened review of the statute on that basis.

       General Statutes (Rev. to 1987) § 17-251, now codified as § 17a-570, provides in pertinent part: “(a).... [I]f such person was sentenced and confined in the institute under section 17-245, he shall not be released except upon order of the court ....
      “(b) . . . . If the court determines the patient should be discharged from the institute, it shall then determine whether the patient should be released, granted parole or returned to the custody of the commissioner of correction.”
      We note that § 17-251 was subsequently amended to limit the court's authority regarding the release of a Whiting committee, and to provide in relevant part: “(b) .... If the court determines the patient should be discharged from the institute, he shall be returned to the custody of the commissioner of correction.”

       We assume, without deciding, that the class identified by the defendant constitutes “a distinct or cognizable group,” which is a required element of a successful equal protection claim. See State v. Couture, 218 Conn. 309, 315, 589 A.2d 343 (1991).

       General Statutes (Rev. to 1987) § 17-194e, now codified as § 17a-515, provides in pertinent part: “commitment proceedings for inmates of CORRECTIONAL INSTITUTIONS TO HOSPITALS FOR MENTAL ILLNESS. . . . [I]f the court revokes the order of commitment, the person shall be returned to any institution administered by the department of correction as the commissioner of correction shall designate, unless his custody in the commissioner of correction has terminated, in which case he shall be discharged.”

       The defendant has failed to raise a due process claim under the state constitution.

       General Statutes § 17a-561 provides in part: “The Whiting Forensic Institute shall exist for the care and treatment of (1) mentally ill patients, confined in facilities under the control of the department of mental health, who require care and treatment under maximum security conditions, (2) persons convicted of any offense enumerated in section 17a-566 who, after examination by the staff of the diagnostic unit of the institute as herein provided, are determined to be mentally ill and dangerous to themselves or others and to require custody, care and treatment at the institute . . . .”

       The trial court denied the defendant’s request for a hearing believing that it was bound by State v. Davis, 190 Conn. 327, 341, 461 A.2d 947, cert. denied, 464 U.S. 938, 104 S. Ct. 350, 78 L. Ed. 2d 315 (1983), and the statutory language of General Statutes § 17a-567.

       In Meachum v. Fano, 427 U.S. 215, 230, 96 S. Ct. 2532, 49 L. Ed. 2d 451 (1976), Justice Stevens wrote in his dissent: “The Court’s holding today, however, appears to rest on a conception of ‘liberty’ which I consider fundamentally incorrect.
      “The Court indicates that a ‘liberty interest’ may have either of two sources. According to the Court, a liberty interest may ‘originate in the Constitution’ . . . or it may have ‘its roots in state law.’ . . . Apart from those two possible origins, the Court is unable to find that a person has a constitutionally protected interest in liberty.
      “If a man were a creature of the state, the analysis would be correct. But neither the Bill of Rights nor the laws of sovereign States create the liberty which the Due Process Clause protects. The relevant constitutional provisions are limitations on the power of the sovereign to infringe on the liberty of the citizen. The relevant state laws either create property rights, or they curtail the freedom of the citizen who must live in an ordered society. Of course, law is essential to the exercise and enjoyment of individual liberty in a complex society. But it is not the source of liberty, and surely not the exclusive source.
      “I had thought it self-evident that all men were endowed by their Creator with liberty as one of the cardinal unalienable rights. It is that basic freedom which the Due Process Clause protects, rather than the particular rights or privileges conferred by specific laws or regulations.” (Citations omitted.)

       The issue in Meachum v. Fano, 427 U.S. 215, 216, 96 S. Ct. 2532, 49 L. Ed. 2d 451 (1976), was framed by the United States Supreme Court as follows: “The question here is whether the Due Process Clause of the Fourteenth Amendment entitles a state prisoner to a hearing when he is transferred to a prison the conditions of which are substantially less favorable to the prisoner, absent a state law or practice conditioning such transfers on proof of serious misconduct or the occurrence of other events.”

       “The court recognizes that statements at public hearings by nonlegislators are not admissible as means of interpreting legislative acts. Savings & Loan League of Connecticut, Inc. v. CHFA, 184 Conn. 311, 315 n.1, 439 A.2d 978 (1981). The legislative record, however, is replete with statements by legislators that the intent of the legislation was to provide treatment for persons who are mentally ill. . . .7 H.E. Proc., Pt. 7,1957 Sess., pp. 3613-19; 7 S. Proc., Pt. 7, 1957 Sess., pp. 4008-11.” In re Michael B., 41 Conn. Sup. 229, 242 n.5, 566 A.2d 446 (1989).

       General Statutes § 17a-567 (b) is a sentencing alternative for defendants who are found eligible for Whiting. The sentencing alternative could have made a significant difference in this case, in which the defendant was sentenced to two concurrent terms of forty-five years. If the report had recommended that the defendant be confined to Whiting, a hearing would have been held pursuant to § 17a-567 (b). If, as a result of the hearing, the defendant was found “mentally ill and dangerous to himself or others and to require custody, care and treatment” at Whiting, the trial court would have been mandated to sentence him according to his conviction and to order confinement at Whiting. General Statutes § 17a-567 (c). Once confined to Whiting for treatment, a defendant’s institutional confinement becomes subject to the provisions of General Statutes §§ 17a-569 and 17a-570. Section 17a-569 provides in pertinent part: “Not less than once every six months the staff of the institute shall give a complete psychiatric examination to every patient confined in the institute. . . . The record of the examination may include a recommendation for transfer of the patient or change in confinement status.” Section 17a-570 provides in pertinent part: “(a) As soon as is practicable the director shall act upon the examination reports of his staff. Upon review of each report and upon consideration of what is for the benefit of the patient and for the benefit of society, the director shall determine that such patient: (1) Remain in the institute for further treatment or be transferred to some other facility ... or (2), if such patient is under commitment, be granted a leave of absence or extended visit or (3) has sufficiently improved to warrant his discharge from the institute . . . .”
      In the present case, the majority holds that notwithstanding the defendant’s substantial offer of proof of his mental illness, he was not entitled to be heard before the court and confinement in Whiting was foreclosed.

       “In Vitek v. Jones, 445 U.S. 480, 491 [100 S. Ct. 1254, 63 L. Ed. 2d 552] (1980), we pointed out that ‘minimum [procedural] requirements [are] a matter of federal law, they are not diminished by the fact that the State may have specified its own procedures that it may deem adequate for determining the preconditions to adverse official action.’ This conclusion was reiterated in Logan v. Zimmerman Brush Co., 455 U.S. 422, 432 [102 S. Ct. 1148, 71 L. Ed. 2d 265] (1982), where we reversed the lower court’s holding that because the entitlement arose from a state statute, the legislature had the prerogative to define the procedures to be followed to protect that entitlement.
      “In light of these holdings, it is settled that the ‘bitter with the sweet’ approach misconceives the constitutional guarantee. If a clearer holding is needed, we provide it today. The point is straightforward: the Due Process Clause provides that certain substantive rights—life, liberty, and property—cannot be deprived except pursuant to constitutionally adequate procedures. The categories of substance and procedure are distinct. Were the rule otherwise, the Clause would be reduced to a mere tautology.” Cleveland Board of Education v. Loudermill, 470 U.S. 532, 541, 105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985).