LIABILITY (LAW); LEGISLATION; DISASTERS; COURT PROCEDURE;

LIABILITY, LEGAL; JUDICIAL PROCEDURE; DISASTERS;

You asked for a discussion of the legal concept of “irrebuttable presumptions” based on questions raised in testimony on sHB 6679, “An Act Concerning Compensation for Smallpox Vaccine Injuries. ” (This office is not authorized to give legal opinions and this report should not be construed as such. )

SUMMARY

sHB 6679 establishes an irrebuttable presumption that any injury, illness, disability, or death of an employee as the result of receiving a smallpox vaccination or a secondary transmission of it occurred while the employee acted within his scope of employment. The presumption applies to any employee who (1) is covered by an approved workers’ compensation plan and (2) either (a) received a covered vaccination as a member of a public health smallpox response team or (b) was employed by the same employer at the same time as a response team member and was exposed to that member. Also, the bill deems as a state employee in the unclassified service any person who (1) is not covered by an employer’s workers’ compensation plan, (2) either received a vaccination as a response team member or was exposed to a member as described above, and (3) has an illness, injury, disability, or death as a result of receiving the vaccination or a secondary transmission of it. The bill makes it an irrebuttable presumption that the harm occurred while the individual was a state employee as so deemed.

The Connecticut Supreme Court and the U. S. Supreme Court have held that irrebuttable presumptions are unconstitutional when they are not necessarily or universally true and the state has reasonable alternative means of making the determination. The state Supreme Court has taken up the irrebuttable presumption issue in cases including workers’ compensation benefits for police and firefighters and a support scale developed to determine payments by legally liable relatives. In both situations, the irrebuttable presumptions were found to violate due process. The U. S. Supreme Court also held that an irrebuttable presumption concerning determination of residency status for purposes of tuition at state universities violated due process.

Federal law and regulation address irrebuttable presumptions. For example, federal law provides an irrebuttable presumption that a miner is totally disabled due to black lung disease under certain circumstances. A recent U. S. Supreme Court decision on the Family and Medical Leave Act (FMLA) invalidated a Labor Department regulation concerning leave time, finding that the regulation established an irrebuttable presumption that was not justified.

BACKGROUND

A presumption is neither evidence nor a substitute for evidence. The term “presumption” is a rule of law directing that if a party proves certain facts (the “basic facts”) at a trial or hearing, the fact finder must also accept an additional fact (the “presumed fact”) as proven unless sufficient evidence is introduced tending to rebut the presumed fact. “In a sense, a presumption is an inference which is mandatory unless rebutted. Most presumptions are based, at least in part, on “the high probability that if the basic facts exist, the presumed fact also exists” (see 29 Am Jur 2d, Evidence § 181, 185).

Some states have codified some of the more common presumptions in their evidence codes. Often a statute will provide that a fact or group of facts is prima facie evidence of another fact. Courts frequently recognize this principle in the absence of an explicit legislative directive (29 Am Jur 2d, Evidence § 181).

An “irrebuttable” or “conclusive presumption” is a rule of law that directs that proof of certain facts conclusively proves an additional fact which cannot be rebutted. Such presumptions “rest upon grounds of expediency or public policy so compelling in character as to override the requirement of proof” (Evidence § 184).

STATE LAW

Both the Connecticut Supreme Court and the U. S. Supreme Court have considered irrebuttable presumptions in state law. Generally, irrebuttable presumptions have been found to be unconstitutional when they are not necessarily or universally true and the state has reasonable alternative means of making the determination.

Nonresidency Status for State University Tuition

The 1973 U. S. Supreme Court case of Vlandis v. Kline (412 U. S. 441) involved a Connecticut statute on tuition at state universities for nonresidents. State law required nonresidents enrolled in the state university system to pay tuition and other fees at higher rates than state residents and provided an irreversible and irrebuttable presumption that because the legal address of a married student was outside the state at the time of admission, or if single, the applicant lived outside the state at some point during the preceding year, he remained a nonresident as long as he was a student in Connecticut. The statute in question (PA 73-5, § 126(a)(2) amending CGS § 10-329b) stated “the status of a student, as established at the time of his application for admission at a constituent unit of higher education under the provisions of this section, shall be his status for the entire period of his attendance at such constituent unit. ”

Students brought suit under the Civil Rights Act contending that they were bona fide residents of Connecticut and, because Connecticut statute classified them as nonresidents for purposes of tuition, their rights to due process and equal protection were infringed. The students argued that they had a constitutional right to challenge the presumption of nonresident status by presenting evidence of bona fide residence in the state.

Justice Stewart’ opinion stated that the constitutional validity of a Connecticut requiring nonresidents to pay higher tuition and fees than residents was not at issue in this case. What was at issue was Connecticut’s statutory definition of residents and nonresidents for purposes of the tuition and fee rates. The court held that the due process clause of the Fourteenth Amendment does not permit Connecticut to deny an individual the opportunity to present evidence that he is a bona fide resident entitled to in-state rates, on the basis of a permanent and irrebuttable presumption of nonresidence, when that presumption is not necessarily or universally true in fact, and when the state has reasonable alternative means of making the crucial determination.

The current statutes on students’ residency status for tuition purposes can be found at CGS §§ 10a-26 to 10a-33.

Workers’ Compensation Benefits

The Connecticut Supreme Court case of Ducharme v. Putnam (161 Conn. 135 (1971) concerned workers’ compensation benefits for a police officer and a conclusive presumption in statute (CGS § 7-433a). The conclusive presumption at issue provided that in adjudicating claims for paying statutory workers’ compensation benefits in the case of a uniformed member of a paid fire department or a regular member of a paid police department who passed a physical examination upon beginning service that revealed no evidence of hypertension or heart disease, any subsequent condition or health impairment caused by such a condition must be conclusively presumed to be a personal injury arising out of and in the course of employment.

The plaintiff, as a condition of his employment as a regular member of the paid police department of Putnam, successfully passed a physical examination (in 1963), which did not reveal any evidence of hypertension or heart disease. But in 1969, while in the course of his employment, he suffered a totally disabling heart attack. The workers’ compensation commissioner, because of the conclusive presumption created in statute, refused to allow the city to present evidence that the attack arose, not from his employment but from systemic health conditions.

The state Supreme Court held that since that presumption denied the city a fair opportunity for rebuttal, there was no rational connection between the fact proved and the ultimate fact presumed, and since the General Assembly is without power to enact a rule of evidence which, as in this case, denied a litigant the right to prove the facts of his case, the state law (7-433a) violated the due process clause of the state and federal constitutions.

The Court stated that a “presumption of law must be based upon facts of universal experience and be controlled by inexorable logic. It is asserted as a self-evident result of human reason and experience” (citing Vallentine v. Pollack, 95 Conn. 556,561). The court further commented that “even in the case of a rebuttable presumption, the fact which is specified to be prima facie evidence of the fact to be inferred or presumed must be a fact which in common experience leads naturally and logically to the fact inferred or presumed. In the mind of the trier, the proof of one must produce the belief that it is more probable than not that the other, the ultimate fact, is thereby established. ” (citing Mott’s Super Markets v. Frassinelli, 148 Conn. 481, 490).

The Court cited a U. S. Supreme Court decision that “laid down the rule that for a presumption to be constitutionally valid there must be a rational connection between the fact proved and the ultimate fact presumed…But where the inference is so strained as not to have a reasonable relation to the circumstances of life as we know them, it is not competent for the legislature to create it as a rule governing the procedure of courts. ” (citing Tot v. United States, 319 U. S. 463, 467-468).

Commenting specifically on the Connecticut statute, the court observed that:

“it is not without significance that although many states have recognized the special situation of firemen and policemen, and the problems of proving a causal relationship between their employment and heart ailments and have provided special treatment for them in the nature of rebuttable presumptions as to causation, no other state appears to have successfully attempted by legislative fiat and conclusive presumption to bar the employer from attempting to prove the negative fact that in a contested case the heart ailment was not causally connected with the employment. ”

Legally Liable Relatives

A 1978 Connecticut Supreme Court case involved an appeal from a Court of Common Pleas judgment sustaining the determination of a Welfare Department fair hearing officer that the plaintiff was liable to contribute $ 71. 83 per month for the support of his mother, a recipient of aid to the disabled. That amount was determined in accordance with the legally liable relatives’ support scale then in effect and established by the welfare commissioner (Salemma v. White, 175 Conn. 35). The court found that the support scale impermissibly conflicted with federal regulations in that it failed to take “account of the needs and other obligations of the relatives” and that it was based entirely on a relative’s gross income, precluding any consideration of “net cash income. ” The court held that “the presumption created by the support scale that a relative’s needs and obligations were met by the living allowance as set forth in the scale and that the excess income was available for support contributions was impermissible because, not being rebuttable, it constituted a deprivation of property without due process of law. ”

The court observed, “by establishing a fixed scale which did not take into account the needs and other obligations of the relative, the commissioner created an irrebuttable presumption that the relative’s needs and obligations were met by the living allowance as set forth in the scale and that the ‘excess income’ was available for support contributions. ” It continued, “ a presumption of law must be based upon facts of universal experience and be controlled by inexorable logic” (citing the Ducharme case). “Irrebutable presumptions are impermissible under the due process clause of the fifth and fourteenth amendments to the U. S. Constitution when not necessarily or universally true in fact, and when the State has reasonable alternative means of making the crucial determination” (citing the Vlandis case).

IRREBUTTABLE PRESUMPTIONS AND FEDERAL LAW

“Black Lung” Disease

Federal law provides an irrebuttable presumption that a miner is totally disabled due to pneumoconiosis (black lung disease), that a miner’s death was due to pneumoconiosis, or that a miner was totally disabled due to pneumoconiosis at the time of death, if the miner is suffering or suffered from a chronic dust disease of the lung which when diagnosed by chest x-ray, biopsy or autopsy, or some other means, yields certain specified results (see 30 US Code, § 921; 20 Code of Federal Regulations (CFR) § 718. 304; and related decisions attached).

Family and Medical Leave Act (FMLA)

In a March 2002 decision, the US Supreme Court invalidated a U. S. Department of Labor regulation that prohibited employers from counting an employee’s leave against the employee’s annual 12 weeks of leave allotted under the FMLA unless the employer specifically notified the employee when he began the leave that the particular absence would be considered FMLA leave (Ragsdale v. Wolverine World Wide Inc. , 122 S. Ct. 1155(2002)).

The regulation required employers to give a full allowance of 12 weeks of FMLA leave to every employee who did not receive the individualized notice, regardless of whether the employee had already been allowed far in excess of the 12-week leave under the employer’s general leave policies (29 CFR § 825. 700(a)).

The Supreme Court, in a 5 to 4 decision with Justice Kennedy writing for the majority, determined that the categorical penalty imposed for breach of the regulation (i. e. permitting the employee to have the full 12 weeks of FMLA leave) was contrary to the FMLA’s remedial mechanism. The court noted that the penalty was without regard to any prejudice that the employee might have suffered from the employer’s failure to

provide notice. The court found that rather than just providing additional leave when the employer’s failure to notify the employee interferes with the exercise of FMLA rights, the federal regulation “establishes an irrebuttable presumption” that the employee’s exercise of FMLA rights was impaired—and that the employee deserves 12 more weeks. ” The court found “no empirical or logical basis for this presumption. ”

Justice Kennedy held that “the challenged regulation is invalid because it alters the FMLA’s cause of action in a fundamental way: it relieves employees of the burden of proving any real impairment of their rights and resulting prejudice. ”

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