source: Caselaw Access Project

author: MCDONALD, J. BERDON, J.,

license: Public Domain

text:
    STATE OF CONNECTICUT v. DONALD MISIORSKI
    (SC 15983)
    Callahan, C. X, and Borden, Berdon, Katz, Palmer, McDonald and Peters, Xs.

      Argued February 16
    officially released August 17, 1999

      David E. Koskoff for the appellant (defendant).

      Mitchell S. Brody, assistant state’s attorney, with whom, on the brief, were John Cronan, acting state’s attorney, and Louis Luba, Jr., assistant state’s attorney, for the appellee (state).

      AnnM. Parrenl filed a brief for the Connecticut Civil Liberties Union Foundation as amicus curiae.
   Opinion

MCDONALD, J.

The sole issue in this appeal is

whether the office of adult probation has authority to provide members of the public with information concerning a probationer guilty of sexual offenses not enumerated in subsection (a) of General Statutes (Rev. to 1997) § 54-102s. We hold that it has such authority.

The following facts are undisputed. On December 17, 1997, the defendant, Donald Misiorski, pleaded, pursuant to a plea bargain, guilty to sexual assault in the fourth degree in violation of General Statutes § 53a-73a, and public indecency in violation of General Statutes § 53a-186. When the defendant had entered his plea, the state recounted the following facts as the grounds for conviction. “[T]his defendant, on the date in question, went to the Foodmart shopping store where the victim works. ... [H]e engaged the victim in a conversation inside, I believe it was, the men’s room. . . . [A]t various times, the defendant had contact of a sexual nature with the victim that was not welcomed by the victim at the time. . . . [L]ater, [the defendant] further involved himself with another sexual contact with the victim.” The victim’s advocate added the following: “The victim lives in a group home. He has constant supervision. He was at [a department of mental retardation] work site when this occurred. He was very distressed over this incident. He said to me that he thought the defendant was his friend. The victim is a very needy [person] who doesn’t have a lot of friends. He said he was very fearful when this took place, and although the victim is bigger than the defendant physically, he did not know how to react. He was afraid that the defendant would withdraw his friendship. He was afraid that if he did something to protect himself that he would be arrested. As he said to me, T seen that happen on TV, and I didn’t want to go to jail.’ He was very upset [by] the fact that he had to discuss these incidents with his brother, [who] is a correctional guard, [and] his mother. He was very ashamed to have to say these things that happened to him. He left his job because he couldn’t face going back to work at Food-mart. Your Honor, in a warrant, the defendant said to an officer [that] ‘[h]e promised he wouldn’t tell.’ I think that says a lot right there, that the victim did not want these incidents to take place, and the victim is mentally handicapped.”

The state’s attorney then recited the terms of the plea bargain: “The recommendation in this case . . . is eighteen months suspended, three years of probation. [The] conditions of probation are sexual offender evaluation and treatment if deemed necessary by the office of adult probation.” The defendant agreed to this plea bargain. The trial court then sentenced the defendant to one year incarceration, execution suspended, three years probation on the fourth degree sexual assault count and six months incarceration, execution suspended, one year probation, on the public indecency count. The defendant’s total effective sentence was eighteen months incarceration, execution suspended, three years probation. The trial court imposed the following conditions of probation: sexual offender testing; counseling and treatment deemed appropriate by the department of adult probation; no contact with the victim; and any other conditions imposed by the office of adult probation.

Thereafter, on March 19, 1998, the office of adult probation informed both the court and the defendant that it intended to notify the defendant’s neighbors and fellow bowling league participants of the defendant’s conviction. The defendant objected and, through a request for clarification, sought to have the court pass upon this proposed action. On June 8, 1998, the trial court held a hearing to determine whether the office of adult probation had authority to notify members of the community. The court concluded that § 54-102s (c) vested the office of adult probation with discretion to make community notification regarding probationers convicted of any sexual offense, not only those enumerated in subsection (a) of § 54-102s. Accordingly, the court issued an order authorizing community notification. The defendant appealed from this order to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 65-1 and General Statutes § 51-199 (c).

The defendant argues that § 54-102s is the only authority permitting a probation officer to provide the public with information about a probationer’s criminal history. He further asserts that the provisions of § 54-102s authorizing public notification are applicable only when a defendant is convicted of an offense enumerated in subsection (a) of § 54-102s, which the defendant was not.

The state counters that there is no statutory bar to a probation officer apprising the public of the defendant’s conviction. The state argues that the authority of the office of adult probation to engage in community notification derives from its general authority to supervise the probationer during the probationary period. The state also argues that if the authority for public notification is derived from § 54-102s, as the trial court concluded, then the plain language of subsection (c) of § 54-102s permits community notification for offenses other than those enumerated in subsection (a) of § 54-102s.

To determine whether the legislature intended to permit the office of adult probation to notify the public of the defendant’s criminal history in this case, we examine the relevant probation statutes; General Statutes (Rev. to 1997) § 53a-30 (a) and General Statutes § 54-108; using well accepted principles of statutory construction. “It is fundamental that statutory construction requires us to ascertain the intent of the legislature and to construe the statute in a manner that effectuates that intent. ... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation. . . . We first look to the language of the statute and to the general goals of probation in order to discern the intent of the legislature . . . .” (Citation omitted; internal quotation marks omitted.) State v. Pieger, 240 Conn. 639, 646, 692 A.2d 1273 (1997).

In Pieger, we held that, “[p]ursuant to § 53a-30 (a), a sentencing court may impose a variety of conditions to a sentence of probation, all of which are aimed at rehabilitating the defendant. . . . [T]he terms of subdivision (12) [of § 53a-30 (a)] are very broad. By allowing the trial court to impose ‘any other conditions reasonably related to [the defendant’s] rehabilitation’ . . . the legislature authorized the court to impose any condition that would help to secure the defendant’s reformation. This broad power is consistent with the goals of probation.” (Citation omitted; emphasis in original.) Id., 646-47. “Additionally, because probation is, first and foremost, a penal alternative to incarceration — its objectives are to foster the offender’s reformation and to preserve the public’s safety — a sentencing court must have the discretion to fashion those conditions of probation it deems necessary to ensure that the individual successfully completes the terms of probation.” (Internal quotation marks omitted.) Id., 647. “The success of probation as a correctional tool is in large part tied to the flexibility within which it is permitted to operate.” (Internal quotation marks omitted.) State v. Smith, 207 Conn. 152, 171, 540 A.2d 679 (1988); accord State v. Pieger, supra, 648. In Smith, we observed: “Years ago, the United States Supreme Court said that the purpose of probation is to provide a period of grace in order to aid the rehabilitation of a penitent offender; to take advantage of an opportunity for reformation which actual service of the suspended sentence might make less probable. Burns v. United States, 287 U.S. 216, 220, 53 S. Ct. 154, 77 L. Ed. 266 (1932). Accordingly, it emphasized that in administering the probation statute, the trial judge has an exceptional degree of flexibility in determining whether to grant or revoke probation and on what terms.” (Internal quotation marks omitted.) State v. Smith, supra, 164. “To a greater or lesser degree, it is always true of probationers . . . that they do not enjoy the absolute liberty to which every citizen is entitled, but only . . . conditional liberty properly dependent on observance of special [probation] restrictions. . . . These restrictions are meant to assure that the probation serves as a period of genuine rehabilitation and that the community is not harmed by the probationer’s being at large.” (Citation omitted; internal quotation marks omitted.) Id., 165, quoting Griffin v. Wisconsin, 483 U.S. 868, 874, 107 S. Ct. 3164, 97 L. Ed. 2d 709 (1987). We reaffirm the principles of Pieger and Smith. Furthermore, the plain language of § 54-108 provides, in relevant part, that probation officers shall “use all suitable methods to aid and encourage [a probationer] and to bring about improvement in his [or her] conduct and condition.” That language is consistent with the principles of Pieger and Smith.

In this case, the defendant questioned the authority of the office of adult probation to notify the public, and, after hearing arguments, the trial court specifically authorized the office of adult probation to notify the defendant’s immediate neighbors and the local school principal. We conclude that the trial court, under § § 53a-30 (a) and 54-108, properly upheld the authority of the office of adult probation to give notification as a condition of probation.

“On appeal, the standard of review of an order of probation is whether the trial court abused its discretion. If it appears that the trial court reasonably was satisfied that the terms of probation had a beneficial purpose consistent with the defendant’s reformation and rehabilitation, then the order must stand. ... In reviewing the issue of discretion, we do so according it every reasonable presumption in favor of the trial court’s ruling. State v. Amarillo, 198 Conn. 285, 313-14, 503 A.2d 146 (1986). [Finally, a] defendant who seeks to reverse the exercise of judicial discretion assumes a heavy burden. . . . State v. Smith, supra, 207 Conn. 167.” (Citations omitted; internal quotation marks omitted.) State v. Pieger, supra, 240 Conn. 648.

We conclude that the trial court acted within its discretion in permitting the office of adult probation, as a condition of probation, to notify members of the defendant’s community “in an attempt to foster the defendant’s reformation.” Id., 649. The defendant had pleaded guilty to sexual assault in the fourth degree and public indecency in a case involving a mentally impaired victim. The trial court thereafter ordered, under the terms of the plea bargain entered into by the defendant, and as a condition of probation, sexual offender testing, counseling and treatment. Notification to the public was a reasonable component of the defendant’s sexual offender treatment. Community notification by the office of adult probation would be a suitable means to “aid and encourage [the defendant] and to bring about improvement in his conduct and condition.” General Statutes § 54-108.

In Roe v. Office of Adult Probation, 125 F.3d 47 (2d Cir. 1997), the Second Circuit Court of Appeals cited the testimony of Michael Santese, Connecticut’s deputy director of operations for the office of adult probation, in which he discussed several purposes of community notification: “Certainly, one of the most important is public safety. It enables the recipients [of such notification] to have information that helps to protect them from becoming victims of sexual offenses. . . . [I]t also enhances the treatment process. . . . [Notification] . . . adds to the offender’s self-restraints ... by virtue of the fact that knowing that others out there are aware of his circumstances . . . would act as an inhibitor ... on [his desire to engage] in any activities that might place [him] at risk of relapse or reoffending.” (Emphasis added; internal quotation marks omitted.) Id., 54 n.14. “The main goal [of public notification] is to get the individual successfully through the period of probation without reoffending and have long-term rehabilitative effects.” (Internal quotation marks omitted.) Id., 54.

The defendant, on the other hand, argues that only under the authority bestowed by § 54-102s may a probation officer disclose information concerning a sexual offender on probation. The defendant claims that § 54-102s does not apply to him because he is not a “sexual offender,” as defined by § 54-102s (a). He argues that the reference in § 54-102s (c) to “the probationer” refers to a “sexual offender” on probation. He argues, therefore, that § 54-102s (c) restricts disclosure to information concerning only that limited class of probationers. We reject this argument.

Section 54-102s (c) is part of Connecticut’s “Megan’s Law.” “On July 29, 1994, Megan Kanka, a seven year old child, was abducted, raped, and murdered near her home. The man who confessed to Megan’s murder lived in a house across the street from the Kanka family and had twice been convicted of sex offenses involving young girls. Megan, her parents, local police, and the members of the community were unaware of the accused murderer’s history; nor did they know that he shared his house with two other men who had been convicted of sex offenses.” E.B. v. Verniero, 119 F.3d 1077, 1081 (3d Cir. 1997), cert. denied, 522 U.S. 1109, 118 S. Ct. 1039, 140 L. Ed. 2d 105 (1998). Statutes such as § 54-102s “are called ‘Megan’s Law,’ after Megan Kanka, [whose] sexual assault and murder . . . sparked enactment of sex offender registration and notification statutes in [the state of New Jersey] and several others.” Roe v. Office of Adult Probation, supra, 125 F.3d 48 n.1.

Section 54-102s (c) provides that “[n]othing in this section or section 54-102r shall be construed to prohibit aparóle officer or probation officer acting in the performance of his duties and within the scope of his employment from disclosing any information concerning the parolee or probationer to any person whenever he deems such disclosure to be appropriate.” Even if we assume that § 54-102s (c) applies only to those persons convicted of sexual offenses catalogued in § 54-102s (a), subsection (c) directly provides that § 54-102s does not prohibit a probation officer from disclosing any information about the probationer to any person as the probation officer deems appropriate. We reject the defendant’s argument that this grant of broad authority under subsection (c) somehow reveals a legislative intent to remove from probation officers the power to take similar steps concerning probationers convicted of crimes not enumerated in § 54-102s (a). Rather, we read § 54-102s (c) to manifest a legislative intent to ensure that § 54-102s, which requires probation officers to make public notification of changes of address, does not restrict the authority of probation officers to make any other appropriate disclosure to protect prospective victims of those probationers apt to offend again.

The purpose of “Megan’s Law” supports our view that § 54-102s does not limit the authority of the office of adult probation to notify the community in cases such as this one. We agree with the Second Circuit Court of Appeals that Connecticut’s sex offender registration and notification statutes were enacted “[i]n response to concerns regarding the harm to society caused by sex crimes and the relatively high rate of recidivism among sex offenders . . . .’’Id., 48.

Our examination of the language of the statute mandating certain public disclosure, the legislative policy it was designed to implement and its relationship to existing legislation leads us to conclude that the legislature, in enacting § 54-102s, did not intend to restrict the discretionary power of the office of adult probation to notify the public in cases in which the probationer has been convicted under a provision not enumerated in § 54-102s (a). We conclude that the office of adultprobation already possessed this power, apart from any provision of § 54-102s, and that it properly exercised that power in this case. If a probation officer determines that public safety will be advanced by community notification, such notification is not prohibited by § 54-102s (c).

The trial court’s designation of the defendant as a “sexual offender,” as agreed upon in the plea bargain, placed the defendant among those offenders subject to careful supervision by the office of adult probation. The plea bargain provided that, for the period of probation, the defendant would be treated as a sexual offender. In view of the evils to be avoided in the case of sexual predators of children or the mentally impaired, it would stand Megan’s Law on its head to hold that § 54-102s prohibits the office of adult probation from warning potential and vulnerable victims of this defendant’s conviction.

The judgment is affirmed.

In this opinion CALLAHAN, C. J., and BORDEN, KATZ, PALMER and PETERS, Js., concurred.

BERDON, J.,

dissenting. The defendant, Donald Misiorski, pleaded guilty to three misdemeanors arising out of a single act of sexual misconduct and public indecency. The defendant’s probation officer decided of his own accord that General Statutes (Rev. to 1997) § 54-102s (Megan’s Law) authorized him to disclose the facts surrounding the defendant’s conviction to, inter alia, the members of the defendant’s bowling league. The defendant moved to prevent this humiliation at the hands of his probation officer, but the trial court permitted the disclosure. The majority affirms that decision on the ground that the trial court “properly ordered [disclosure as a] condition of probation.” That is not what happened. In fact, the trial court abdicated all responsibility for the disclosure by holding that Megan’s Law “giv[es] the probation or parole authorities absolute discretion [to disclose a citizen’s criminal record] in any case in which a person has been convicted of [any] sexual offense . . . .” (Emphasis added.) By affirming this ruling, the majority of this court gives probation officers despotic discretion to violate a citizen’s privacy arbitrarily and without any judicial review whatsoever.

In the final sentence of its opinion, the majority concludes that Megan’s Law does not “[prohibit] the office of adult probation from warning potential and vulnerable victims” of potentially dangerous transgressors. I do not, of course, doubt the legitimacy of the state’s power to protect the public. The real question implicated by the present case, however, is whether the state may brand a defendant as a deviant sexual predator without first according that defendant a meaningful hearing that satisfies the requirements of due process of law. In my view, this latter question admits of only one answer: the constitution forbids the state from depriving a citizen of his privacy unless it first conducts a rigorous, judicial inquiry.

“Traditionally, the extent of process due an individual subject to a possible deprivation of a protected liberty or property interest is analyzed under the framework of Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976).” Doe v. Pataki, 3 F. Sup. 2d 456, 469 (S.D.N.Y. 1998). In Mathews, the United States Supreme Court explained that the determination of what process is due in a particular context “generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the [state’s] interest . . . .” Mathews v. Eldridge, supra, 335. I consider each of these factors in turn.

The private interest at stake is of constitutional magnitude, and hence of the highest order. “Constitutional privacy interests are implicated . . . because . . . [t]he damage to [citizens’] reputations resulting from [disclosure] stigmatizes them as currently dangerous sex offenders, can harm their earning capacities, and can cause them to be objects of derision in the community.” Doe v. Sex Offender Registry Board, 428 Mass. 90, 101 n.12, 697 N.E.2d 512 (1998); accord E.B. v. Verniero, 119 F.3d 1077, 1105-1106 (3d Cir. 1997), cert. denied, 522 U.S. 1109, 118 S. Ct. 1039, 140 L. Ed. 2d 105 (1998); Doe v. Pataki, supra, 3 F. Sup. 2d 467-68; Cutshall v. Sundquist, 980 F. Sup. 928, 932 (M.D. Tenn. 1997); Doe v. Poritz, 142 N.J. 1, 99-107, 662 A.2d 367 (1995).

The risk of an erroneous deprivation when probation officers are deputized to make life shattering decisions under Megan’s Law is unacceptably high. Such determinations are the province of judges, not probation officers. Accordingly, “the probable value . . . [of] substitute procedural safeguards”; Mathews v. Eldridge, supra, 424 U.S. 334; — namely, the requirement of a rigorous, judicial determination before a disclosure may be made — is substantial.

Finally, the state’s interest consists of averting theoretical harm that might occur in the absence of prompt notification. This interest well may justify disclosure that follows close upon the heels of a prompt judicial hearing. It cannot, however, possibly be allowed to trump the need for a judicial hearing in the first place.

In my view, my analysis of the Mathews factors compels the conclusion that a judicial hearing must be conducted before any disclosures may be made pursuant to Megan’s Law. This conclusion comports with the holdings of a number of well reasoned opinions from highly respected courts. See, e.g., E.B. v. Verniero, supra, 119 F.3d 1105-1106; Doe v. Pataki, supra, 3 F. Sup. 2d 471-72; Doe v. Sex Offender Registry Board, supra, 428 Mass. 101 n.12; Doe v. Poritz, supra, 142 N.J. 107. These courts have also addressed the sensitive question of how, precisely, the state should balance a citizen’s right to privacy against the perceived need to invade that privacy through disclosure pursuant to Megan’s Law. Drawing upon the work of these courts, I would hold that: (1) a judicial hearing is required; (2) the defendant is entitled to legal representation at this hearing; (3) the state must furnish an attorney to a defendant who cannot afford one; (4) the state must prove, by clear and convincing evidence, that disclosure is necessary to prevent a substantial likelihood of grave harm; and (5) the defendant is entitled to assert an appeal as of right before his criminal record may be exposed to members of his community.

I recognize that the nightmarish regime created by the majority is not inconsistent with the text of Megan’s Law. That said, the statute does not address the mechanics of disclosing a defendant’s criminal record to the community. Accordingly, the statute does not foreclose the possibility of a rigorous, judicial hearing prior to branding a defendant as a deviant sexual predator. To the extent that this interpretation is mistaken, then Megan’s Law is unconstitutional as it was applied to the facts of the present case.

“Because statutory construction is informed by the presence of constitutional infirmities, this court reads statutes so as to avoid, rather than to create, constitutional questions. In re Valerie D., 223 Conn. 492, 534, 613 A.2d 748 (1992). More specifically, [i]n choosing between two statutory constructions, one valid and one constitutionally precarious, we will search for an effective and constitutional construction that reasonably accords with the legislature’s underlying intent. . . . In re Baby Girl B., 224 Conn. 263, 286, 618 A.2d 1 (1992). By refusing to acknowledge the unconstitutional consequences of the decision it renders today, the majority performs an end run around this basic axiom of statutory construction.” (Internal quotation marks omitted.) In re Baby Z., 247 Conn. 474, 561, 724 A.2d 1035 (1999) (Berdon, J., dissenting).

In short, the majority’s grant of fascistic powers to probation officers cuts away a pound of flesh from the constitutional right to privacy. Accordingly, I dissent.

       General Statutes (Rev. to 1997) § 54-102s, which was applicable when the court rendered judgment sentencing the defendant to probation, provides: “Notification of change of address of sexual offenders on parole orprobation. (a) For the purposes of this section, ‘sexual offender’ means any person convicted of a violation of subdivision (2) of section 53-21, section 53a-70, 53a-70a, 53a-70b, 53a-71, 53a-72a or 53a-72b committed on or after October 1, 1995.
      “(b) Any sexual offender who is released from a correctional institution on parole or who is sentenced to a period of probation shall, during the period of such parole or probation and as a condition of such parole or probation, immediately notify his parole officer or probation officer, as the case may be, whenever he changes his residence address. Each parole officer or probation officer who is notified of such change of address shall notify the chief of police of the police department or resident state trooper for the municipality of the new address of the parolee or probationer and any other law enforcement official he deems appropriate.
      “(c) Nothing in this section or section 54-102r shall be construed to prohibit a parole officer or probation officer acting in the performance of his duties and within the scope of his employment from disclosing any information concerning the parolee or probationer to any person whenever he deems such disclosure to be appropriate.”
      This section was transferred to General Statutes § 54-260 in 1999. The only amendment was the deletion of the words “or section 54-102r” in subsection (c) to reflect the repeal of General Statutes (Rev. to 1997) § 54-102r by Public Acts 1998, No. 98-111, § 12.
      Hereinafter, all references to § 54-102s are to the 1997 revision of the statute.

       General Statutes § 53a-73a provides in relevant part: “Sexual assault in the fourth degree: Class A misdemeanor, (a) A person is guilty of sexual assault in the fourth degree when: (1) Such person intentionally subjects another person to sexual contact who is (A) under fifteen years of age, or (B) mentally defective or mentally incapacitated to the extent that he is unable to consent to such sexual contact, or (C) physically helpless, or (D) less than eighteen years old and the actor is such person’s guardian or otherwise responsible for the general supervision of such person’s welfare, or (E) in custody of law or detained in a hospital or other institution and the actor has supervisory or disciplinary authority over such other person; or (2) such person subjects another person to sexual contact without such other person’s consent; or (3) such person engages in sexual contact with an animal or dead body; or (4) such person is a psychotherapist and subjects another person to sexual contact who is (A) a patient of the actor and the sexual contact occurs during the psychotherapy session, or (B) a patient or former patient of the actor and such patient or former patient is emotionally dependent upon the actor, or (C) a patient or former patient of the actor and the sexual contact occurs by means of therapeutic deception; or (5) such person subjects another person to sexual contact and accomplishes the sexual contact by means of false representation that the sexual contact is for a bona fide medical purpose by a health care professional; or (6) such person is a school employee and subjects another person to sexual contact who is a student enrolled in a school in which the actor works or a school under the jurisdiction of tire local or regional board of education which employs the actor. . . .”
      General Statutes § 53a-65 (3) defines sexual contact as “any contact with the intimate parts of a person not married to the actor for the purpose of sexual gratification of the actor or for the purpose of degrading or humiliating such person or any contact of the intimate parts of the actor with a person not married to the actor for the purpose of sexual gratification of the actor or for the purpose of degrading or humiliating such person.”

       General Statutes § 53a-186 provides in relevant part: “Public indecency: Class B misdemeanor, (a) A person is guilty of public indecency when he performs any of the following ads in a public, place: (1) An act of sexual intercourse as defined in subdivision (2) of section 53a-65; or (2) a lewd exposure of the body with intent to arouse or to satisfy the sexual desire of the person; or (3) a lewd fondling or caress of the body of another person. . . .”

       The written notice apprising the defendant of the conditions of his probation provided: “[I]n addition to those that may be imposed by the Office of Adult Probation . . . sex offender treat, test, eval [and] no contact [with] victim.”

       General Statutes (Rev. to 1997) § 53a-30 provides in relevant part: “Conditions of probation and conditional discharge, (a) When imposing sentence of probation or conditional discharge, the court may, as a condition of the sentence, order that the defendant: (1) Work faithfully at a suitable employment or faithfully pursue a course of study or of vocational training that will equip him for suitable employment; (2) undergo medical dr psychiatric treatment and remain in a specified institution, when required for that purpose; (3) support his dependents and meet other family obligations; (4) make restitution of the fruits of his offense or make restitution, in an amount he can afford to pay or provide in a suitable manner, for the loss or damage caused thereby and the court may fix the amount thereof and the manner of performance; (5) if a minor, (A) reside with his parents or in a suitable foster home, (B) attend school, and (C) contribute to his own support in any home or foster home; (6) post a bond or other security for the performance of any or all conditions imposed; (7) refrain from violating any criminal law of the United States, this state or any other state; (8) if convicted of a misdemeanor or a felony, other than a capital felony, a class A felony or a violation of section 21a-278, 21a-278a, 53a-55, 53a-56, 53a-56b, 53a-57, 53a-58 or 53a-70b or any offense for which there is a mandatory minimum sentence which may not be suspended or reduced by the court, and any sentence of imprisonment is suspended, participate in an alternate incarceration program; (9) reside in a residential community center or halfway house approved by the Commissioner of Correction, and contribute to the cost incident to such residence; (10) participate in a program of community service labor in accordance with section 53a-39c; (11) if convicted of a violation of subdivision (2) of section 53-21, section 53a-70, 53a-70a, 53a-70b, 53a-71, 53a-72a or 53a-72b, undergo specialized sexual offender treatment; (12) satisfy any other conditions reasonably related to his rehabilitation. The court shall cause a copy of any such order to be delivered to the defendant and to the probation officer, if any. ...”
      Hereinafter, allreferences to § 53a-30 are to the 1997 revision of the statute.

       General Statutes § 54-108 provides in relevant part: “Duties of probation officers. Probation officers shall . . . use all suitable methods to aid and encourage [a probationer] and to bring about improvement in his conduct and condition. . . .”

       General Statutes (Rev. to 1997) § 54-102r consisted of a registration scheme for sex offenders who were going “to be released from the supervision of the Office of Adult Probation upon completion or termination of a sentence of probation or . . . released from a correctional facility”; General Statutes (Rev. to 1997) § 54-102r (b); and required these offenders to provide certain registration information to law enforcement officials. In 1995, § 54-102r had been amended to allow the disclosure of registration information “to any specific person if such disclosure is deemed necessary by the chief of police of the police department or resident state trooper of the municipality 1o protect said person from any person subject to . . . registration . . . .” General Statutes (Rev. to 1997) § 54-102r (g); see Public Acts 1995, No. 95-142, § 10. In 1998, the legislature repealed § 54-102r effective October 1, 1998. See Public Acts 1998, No. 98-111, § 12.

       As it read at the time of the defendant’s offense, General Statutes (Rev. to 1997) § 54-102s provided: “(a) For the purposes of this section, ‘sexual offender’ means any person convicted of a violation of subdivision (2) of section 53-21, section 53a-70, section 53a-70a, 53a-70b, 53a-71, 53a-72a or 53a-72b committed on or after October 1, 1995.
      “(b) Any sexual offender who is released from a correctional institution on parole or who is sentenced to a period of probation shall, during the period of such parole or probation and as a condition of such parole or probation, immediately notify his parole officer or probation officer, as the case may be, whenever he changes his residence address. Each parole officer or probation officer who is notified of such change of address shall notify the chief of police of the police department or resident state trooper for the municipality of the new address of the parolee or probationer and any other law enforcement official he deems appropriate.
      “(c) Nothing in this section or section 54-102r shall be construed to prohibit a parole officer or probation officer acting in the performance of his duties and within the scope of his employment from disclosing any information concerning the parolee or probationer to any person whenever he deems such disclosure to be appropriate.”
      This section was transferred to General Statutes § 54-260 in 1999 and the words “or section 54-102r” in subsection (c) were deleted to reflect the repeal of General Statutes § 54-102r by Public Acts 1998, No. 98-111.

       The majority asserts that “ ‘the trial judge has an exceptional degree of flexibility’ ” to determine the terms of probation. (Emphasis added.) Because the majority authorizes probation officers to make disclosures pursuant to Megan’s Law, this proposition has nothing to do with the result that the majority has reached.

       The relevant text of Megan’s Law provides: “Nothing in this section . . . shall be construed to prohibit a parole officer or probation officer acting in the performance of his duties and within the scope of his employment from disclosing any information concerning the parolee or probationer to any person whenever he deems such disclosure to be appropriate.” General Statutes (Rev. to 1997) § 54-102s (c).


author: NORCOTT, J.

text:
    CHURCH HOMES, INC. v. ADMINISTRATOR, UNEMPLOYMENT COMPENSATION ACT, ET AL.
    (SC 16073)
    Callahan, C. X, and Berdon, Norcott, Ka,tz and McDonald, Js.

      Argued May 26
    officially released August 24, 1999

      Hugh F. Murray III, with whom were Thomas M. Cloherty and, on the brief, Everett E. Newton, for the appellant (plaintiff).

      Thadd A. Gnocchi and Richard T. Sponzo, assistant attorneys general, with whom, on the brief, were Richard Blumenthal, attorney general, and Charles A. Over-end, assistant attorney general, for the appellee (named defendant).

      Kevin A. Creane, for the appellee (defendant Jasmine R. Bailey).
   Opinion

NORCOTT, J.

Pursuant to General Statutes § 31-236 (a) (3), an employee is ineligible for unemployment benefits when unemployed because of a labor dispute, unless such unemployment is due to, inter aha, a lockout by the employer. In this appeal, we must determine: (1) whether the trial court properly concluded that a lockout existed and that, consequently, the employees were entitled to unemployment benefits pursuant to § 31-236 (a) (3) (C) (ii) where the employer had announced that the striking employees could return to work under the terms of an expired collective bargaining agreement except for the arbitration provision; and (2) if the trial court interpreted § 31-236 (a) (3) (C) (ii) properly, whether such interpretation is nevertheless preempted by federal labor laws. The named defendant administrator of the Unemployment Compensation Act (administrator) awarded compensation benefits to the defendant Jasmine R. Bailey, an employee of the plaintiff, Church Homes, Inc. Upon appeal by the plaintiff, that award was affirmed by the employment security appeals referee (appeals referee), the employment security appeals division board of review (board), and the trial court. The plaintiff appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 65-1 and General Statutes § 51-199 (c). We affirm the judgment of the trial court.

The facts of this case are not in dispute and are set forth in the decision of the board. “On November 1, 1995, the collective bargaining agreement between the [defendant] and other employees, members of the New England Healthcare Employees Union District 1199, (AFL-CIO) (hereinafter known as the union), and the employer expired and the employees continued working under the terms of the expired contract. On November 2, 1995, the union notified the employer that the approximately one hundred and eighty-five members of the service and maintenance local would strike on November 16,1995. The strike commenced at 6:00 p.m. on November 16,1995. On November 21,1995, the union advised the employer that ‘the striking employees are ready, willing and able to return to work immediately, as a group, and to continue work under the terms and conditions of the collective bargaining agreement in effect on November 1, 1995. The offer is made unconditionally. . . .’ On November 22, 1995, the employer responded in writing that it would accept the offer to return to work under the terms and conditions of the expired contract except that the provisions providing for union security obligations and the right to invoke arbitration for post-contract events would no longer be in effect. The employees did not return to work under the terms set forth by the employer. A tentative settlement agreement was reached on December 18, 1995. . . ."

The administrator found that the initial strike, for which compensation could not be granted, had been converted to a lockout pursuant to § 31-236 (a) (3) (C) (ii) by the plaintiffs November 22, 1995 announcement that work would be made available according to the terms and conditions of the expired collective bargaining agreement (agreement), except for the arbitration provision. Accordingly, the administrator awarded unemployment benefits to those employees involved in the labor dispute from the week ending November 25, 1995, until December 18, 1995. The plaintiff appealed the administrator’s decision to the appeals referee. The administrator’s decision was affirmed by the appeals referee and, subsequently, by the board. The plaintiff then appealed to the trial court, which affirmed the decision of the board.

In this appeal, the plaintiff contends that the employees are ineligible for benefits and that its announcement that work would be available did not constitute a lockout pursuant to § 31-236 (a) (3) (C) (ii) because the terms and conditions set forth in its announcement were identical to those in existence immediately prior to such announcement. Specifically, the plaintiff claims that as of midnight, November 1, 1995, the agreement had expired, and thus, by operation of federal law, the arbitration provision automatically ceased to have effect; therefore, the terms and conditions current immediately prior to the announcement were the then existing terms of the expired agreement. Hence, the circumstances did not constitute a lockout pursuant to § 31-236 (a) (3) (C) (ii) that would have made the employees eligible for unemployment benefits. Moreover, the plaintiff asserts that any construction of § 31-236 (a) (3) (C) (ii) to the contrary would be preempted by federal labor laws.

The administrator contends, however, that the plaintiff was not required by federal law to cease enforcement of the arbitration provision. Therefore, the administrator claims, the plaintiffs announcement that work would be available was under terms and conditions less favorable than those current immediately prior to such announcement. Accordingly, these circumstances constituted a lockout pursuant to § 31-236 (a) (3) (C) (ii). Contrary to the argument of the plaintiff, the administrator claims that this construction of § 31-236 (a) (3) (C) (ii) and the corresponding award of unemployment benefits to the employees are not preempted by federal law. We agree with the administrator.

I

The plaintiff first contends that the trial court’s interpretation of § 31-236 (a) (3) (C) (ii) was improper. Specifically, the plaintiff claims that in the context of this case, the statutory language “those [terms and conditions] current immediately prior to such announcement” refers to the terms and conditions of the expired agreement, except for the arbitration provision. We disagree with the plaintiffs interpretation of § 31-236 (a) (3) (C) (ii).

We begin by setting out the appropriate standard of review. Generally, “[o]ur review of an agency’s decision on questions of law is limited by the traditional deference that we have accorded to that agency’s interpretation of the acts it is charged with enforcing. Police Dept. v. State Board of Labor Relations, 225 Conn. 297, 300, 622 A.2d 1005 (1993). We do not, however, accord special deference to the agency’s decision when that decision involves a question of law [that] has not previously been subject to judicial scrutiny. . . . Duni v. United Technologies Corp., 239 Conn. 19, 25, 682 A.2d 99 (1996).” (Internal quotation marks omitted.) Casey v. Northeast Utilities, 249 Conn. 365, 369, 731 A.2d 294 (1999). Moreover, we must determine “whether the administrative action resulted from an incorrect application of the law to the facts found or could not reasonably or logically have followed from such facts. Although the court may not substitute its own conclusions for those of the administrative board, it retains the ultimate obligation to determine whether the administrative action was unreasonable, arbitrary, illegal or an abuse of discretion.” (Internal quotation marks omitted.) Mattatuck Museum-Mattatuck Historical Society v. Administrator, Unemployment Compensation Act, 238 Conn. 273, 276, 679 A.2d 347 (1996), quoting United Parcel Service, Inc. v. Administrator, Unemployment Compensation Act, 209 Conn. 381, 385-86, 551 A.2d 724 (1988).

Our resolution of this issue is, at bottom, a matter of statutory interpretation. “The process of statutory interpretation involves a reasoned search for the intention of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of this case, including the question of whether the language actually does apply. In seeking to determine that meaning, ‘we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.’ ” (Citation omitted.) United Illuminating Co. v. New Haven, 240 Conn. 422, 431, 692 A.2d 742 (1997).

We begin our analysis by examining the plain language of § 31-236 (a) (3) (C) (ii), which provides that an individual shall be ineligible for unemployment benefits when his unemployment is due to the existence of a labor dispute, unless, inter alia, “his unemployment is due to the existence of a lockout. A lockout exists whether or not such action is to obtain for the employer more advantageous terms when ... an employer makes an announcement that work will be available after the expiration of the existing contract only under terms and conditions which are less favorable to the employees than those current immediately prior to such announcement . . . .” (Emphasis added.)

We interpret the statutory language, “[conditions] current immediately prior to such announcement,” to refer to those conditions that were contained in the last mutual agreement between the union and the plaintiff. This is consistent with the board’s prior interpretations, which, although not binding, are nevertheless compelling. The board previously has interpreted the statutory language “[conditions] current immediately prior to such announcement,” to mean “those conditions that existed in the last, expired contract between the union and the company.” Sturtevant v. Tectonic Industries, Inc., Employment Security Appeals Division Board of Review, Case No. 1860-83-BR (October 6, 1983) p. 2. The reasoning behind this conclusion was that “[a]ny other interpretation would enable the employer to require the union and its members to submit to a new condition of employment that the employer may have unilaterally instituted between the date of the expiration of the previous contract and the subsequent date of the announcement to the union, as required by statute, that work was available to the employees under the terms and conditions of employment which included the newly imposed condition in which the union and its members had no voice. ... To hold otherwise would result in granting to the employer in such matters an advantage that would be seriously detrimental to the union members engaged in the labor dispute with the employer and with further resulting unintended loss of unemployment compensation entitlement.” Id.

Similarly, in Simons v. Colt Industries, Inc., Employment Security Appeals Division Board of Review, Case No. 1335-87-BR (December 1, 1987) p. 19, the board explained that “[a]ny mutually agreed upon past practice or term or condition to which both parties stipulate will be a term and condition current immediately prior to ‘such announcement.’ In the present case, however, since the union has not assented to the changes imposed after the expiration of the contract, it is the contractual terms which control the employment agreement between Colt [Industries, Inc.] and the union. The employer is not locked into those last mutually agreed upon terms but may choose for business purposes to institute changes. However, as elsewhere in unemployment compensation law, where an employer unilaterally creates a change in the conditions of employment, it may be subject to liability for unemployment compensation benefits paid to those unemployed as a consequence of its actions.”

Moreover, as the board noted in Simons v. Colt Industries, Inc., supra, p. 18, “[o]ur interpretation of § 31-236 (a) (3) is consistent with the general principles of unemployment compensation law, which seeks to preserve the conditions of hire. A refusal by an employer to increase benefits beyond that provided by the employment contract does not give the employee sufficient cause to voluntarily quit his employment. However, a reduction of benefits by an employer will provide good cause for voluntarily leaving one’s employment without disqualification from unemployment compensation benefits. [General Statutes] § 31-236 (a) (2) (A) (i). Labor disputes are analogous since striking employees attempting to extract additional concessions through the leverage of a strike are ineligible for benefits, but employees seeking to remain in work under mutually established working conditions will be eligible for benefits if the employer fails to provide employment under the terms of the agreement.”

Our interpretation also is consistent with the general purpose of the state’s statutory scheme of unemployment compensation: “[T]he act is remedial and, consequently, should be liberally construed in favor of its beneficiaries. . . . Indeed, the legislature underscored its intent by expressly mandating that the act ‘shall be construed, interpreted and administered in such manner as to presume coverage, eligibility and nondisqualification in doubtful cases.’ General Statutes § 31-274 (c).” (Citation omitted.) Mattatuck Museum-Mattatuck Historical Society v. Administrator, Unemployment Compensation Act, supra, 238 Conn. 278.

The plaintiff argues that the interpretation of the trial court was incorrect, however, because the arbitration provision automatically expired by operation of federal law and, therefore, could not be “current immediately prior” to the plaintiffs announcement. We are unpersuaded.

Our resolution of this claim is guided by the reasoning of the United States Supreme Court that, “under the [National Labor Relations Act], arbitration is a matter of consent, and that it will not be imposed upon parties beyond the scope of the agreement.” Litton Financial Printing Division v. National Labor Relations Board, 501 U.S. 190, 201, 111 S. Ct. 2215, 115 L. Ed. 2d 177 (1991). In that case, the court upheld the position taken by the National Labor Relations Board “that an arbitration clause does not, by operation of the [National Labor Relations Act] . . . continue in effect after expiration of a collective bargaining agreement.” Id., 200. While continuing enforcement of an arbitration provision is not compulsory, however, under Litton Financial Printing Division, employers also are not precluded from continuing to comply with an arbitration clause of an expired agreement, and may consent to continuing enforcement of the provision. Id., 201. Pursuant to federal law, therefore, the plaintiff was permitted, but not required, to discontinue the arbitration provision at the expiration of the agreement. Accordingly, federal law would not have precluded the plaintiff from announcing that work would be available consistent with the last mutually agreed upon terms and conditions, those being the terms and conditions of the expired agreement, including the arbitration provision.

We conclude that the terms and conditions current immediately prior to the plaintiffs announcement that work would be available were the conditions of the expired agreement, including the arbitration provision. By announcing that work would be available “under the terms and conditions of the expired contract except that . . . the right to invoke arbitration . . . would no longer be in effect,” the plaintiff made work available only under terms and conditions that were less favorable than those current immediately prior to announcement. Accordingly, we affirm the trial court’s determination that the employees were entitled to unemployment benefits based on the existence of a lockout pursuant to § 31-236 (a) (3) (C) (ii).

II

The plaintiff next contends that § 31-236 (a) (3) (C) (ii), as interpreted by the administrator and the trial court, is preempted by federal law. Specifically, the plaintiff claims that the statute is preempted by the National Labor Relations Act, 29 U.S.C. § 151 et seq., because it interferes with areas that are comprehensively regulated by Congress including, inter alia, arbitration agreements between unions and employers. We disagree.

“The question of preemption is one of federal law, arising under the supremacy clause of the United States constitution. . . . Determining whether Congress has exercised its power to preempt state law is a question of legislative intent. . . . Express preemption occurs to the extent that a federal statute expressly directs that state law be ousted to some degree from a certain field.” (Citations omitted; internal quotation marks omitted.) Dowling v. Slotnik, 244 Conn. 781, 791, 712 A.2d 396, cert. denied, 525 U.S. 1017, 119 S. Ct. 542, 142 L. Ed. 2d 451 (1998). “Even when there is no express preemption, any proper application of the doctrine must give effect to the intent of Congress.” New York Telephone Co. v. New York State Dept. of Labor, 440 U.S. 519, 540, 99 S. Ct. 1328, 59 L. Ed. 2d 553 (1979), citing Malone v. White Motor Corp., 435 U.S. 497, 504, 98 S. Ct. 1185, 55 L. Ed. 2d 443 (1978).

The United States Supreme Court previously has addressed the issue of whether the National Labor Relations Act preempts states from providing unemployment benefits to striking workers. See Baker v. General Motors Corp., 478 U.S. 621, 635, 106 S. Ct. 3129, 92 L. Ed. 2d 504 (1986); New York Telephone Co. v. New York State Dept. of Labor, supra, 440 U.S. 546-47. In New York Telephone Co. v. New York State Dept. of Labor, supra, 545, a plurality of the court rejected the argument that the act preempted a New York statute that provided unemployment benefits to employees on strike after eight weeks. On the basis of an extensive review of the legislative history of the Social Security Act and of the National Labor Relations Act, both enacted in the same summer, the court concluded that Congress had intended states to be free to pay unemployment benefits to striking employees. Id., 540-46. “In an area in which Congress has decided to tolerate a substantial measure of diversity, the fact that the implementation of this general state policy affects the relative strength of the antagonists in a bargaining dispute is not a sufficient reason for concluding that Congress intended to preempt that exercise of state power.” Id., 546. In Baker v. General Motors Corp., supra, 635, the United States Supreme Court reiterated its conclusion that states have discretion to provide for unemployment benefits in the context of a labor dispute by upholding a Michigan statute that disqualified employees from unemployment compensation for financing a strike by emergency union dues. The court stated that “New York Telephone Co. makes it clear that a State may, but need not, compensate actual strikers even though they are plainly responsible for their own unemployment. And, on the other hand ... it [is] equally clear that a State may refuse, or provide, compensation to workers laid off by reason of a labor dispute in which they have no interest or responsibility whatsoever. In between these opposite ends of the spectrum are cases in which the furloughed employees have had some participation in the labor dispute that caused their unemployment.” Id.

Section 31-236 (a) (3) (C) (ii) falls within the realm of discretion provided to the states by Congress to award unemployment benefits to workers unable to work as the result of a labor dispute. This statute does not regulate the conduct of the parties as extensively as did the statute permitted in New York Telephone Co. Unlike the New York statute, § 31-236 (a) (3) (C) (ii) does not provide unemployment benefits to all striking workers, only to those workers whose strike has been converted to a lockout. Moreover, under § 31-236 (a) (3) (C) (ii), striking employees are eligible to receive benefits only if they are willing to return to work under the terms of the last mutually agreed upon employment agreement. The employer has the right to choose not to agree to all the previous terms, in which case, under the statute, a lockout exists. In short, § 31-236 (a) (3) (C) (ii) neither requires nor prohibits an employer or employees from continuing to operate under the terms of their previous agreement. If striking employees are willing to return to work under the terms of the prior agreement pending negotiation of a new agreement, and the employer is not willing to agree, the statute provides for unemployment benefits to the employees.

In support of its claim, the plaintiff suggests that the present case is akin to Nash v. Florida Industrial Commission, 389 U.S. 235, 88 S. Ct. 362, 19 L. Ed. 2d 438 (1967), and United Steelworkers of America AFL-CIO-CLC v. Johnson, 830 F.2d 924 (8th Cir. 1987). In those cases, state unemployment statutes were determined to be preempted by provisions of the National Labor Relations Act. The state statutes in both of those cases, however, were preempted because they denied unemployment benefits to persons who had exercised rights directly protected by the National Labor Relations Act. See Nash v. Florida Industrial Commission, supra, 239 (Florida statute rendering employee ineligible for unemployment compensation because employee had filed unfair labor practice complaint preempted by National Labor Relations Act, which protects right to file unfair labor practice charge); United Steelworkers of America AFL-CIO-CLC v. Johnson, supra, 929 (South Dakota statute granting unemployment compensation to nonunion employees but not to union employees in labor dispute, regardless of willingness to work, preempted by National Labor Relations Act, which protects right to participate in organized labor). Those cases do not affect our analysis here, because, unlike the statutes at issue in Nash and United Steelworkers of America AFL-CIO-CLC, § 31-236 (a) (3) (C) (ii) makes no distinction between persons based on their exercise of rights protected under the National Labor Relations Act in determining eligibility for unemployment benefits.

Accordingly, we conclude that the trial court’s interpretation of § 31-236 (a) (3) (C) (ii), which we today affirm, is not preempted by the provisions of the National Labor Relations Act.

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes § 31-236 (a) provides in relevant part: “An individual shall be ineligible for benefits ... (3) during any week in which it is found by the administrator that his total or partial unemployment is due to the existence of a labor dispute other than a lockout at the factory, establishment or other premises at which he is or has been employed, provided the provisions of this subsection shall not apply if it is shown to the satisfaction of the administrator that . . . (C) his unemployment is due to the existence of a lockout. A lockout exists whether or not such action is to obtain for the employer more advantageous terms when . . . (ii) an employer makes an announcement that work will be available after the expiration of the existing contract only under terms and conditions which are less favorable to the employees than those current immediately prior to such announcement; provided in either event the recognized or certified bargaining agent shall have advised the employer that the employees with whom he is engaged in the labor dispute are ready, able and willing to continue working pending the negotiation of a new contract under the terms and conditions current immediately prior to such announcement . . . .”

       Before this court, the plaintiff addresses the expiration of the arbitration provision, as well as the union security and checkoff provisions. In its decision, the board stated that it could not “tell from the record . . . whether the parties made any effort to come to an agreement about the union security and checkoff provisions being extended when the contract expired, or whether the employer had stopped checking off dues prior to its November 22, 1995 announcement, thus establishing, and putting the union on notice, that the provisions were no longer in effect. Since these material facts regarding the dues checkoff and security provisions are not in the record before us, we will focus our analysis solely on the other change implemented by the employer, the elimination of the arbitration provision.” In our review of the trial court’s affirmance of the board’s decision, we likewise confine our analysis to the exclusion of the arbitration provision from the terms and conditions announced by the plaintiff.
      We note, for purposes of clarification, that the union security provision of the agreement requires the plaintiff to fire any employee who fails to join or pay dues to the union. The checkoff provision requires the plaintiff to deduct dues from employee paychecks and deliver the money directly to the union.

       In its affirmance of the board's decision in the present case, the trial court also relied in part upon the board’s decisions in Sturtevant v. Tectonic Industries, Inc., Employment Security Appeals Division Board of Review, Case No. 1860-83-BR (October 6, 1983), and Simons v. Colt Industries, Inc., Employment Security Appeals Division Board of Review, Case No. 1335-87-BR (December 1, 1987).