PRESIDING CHAIRMAN: Senator McDonald
COMMITTEE MEMBERS PRESENT:
SENATORS: Caligiuri, Handley, Kissel, Roraback
REPRESENTATIVES: Adinolfi, Aman, Bye, Fox, Geragosian, Giegler, Godfrey, Gonzalez, Green, Hamm, Hamzy, Hurlburt, Klarides, Labriola, McMahon, O'Brien, O'Neill, Olson, Powers, Rowe, Serra, Stone, Taborsak, Walker, Wright
REPRESENTATIVE LAWLOR: --of the Judiciary Committee. At the outset, I'd just like to apologize to everyone. As you probably know, if you know how the building functions, there's quite a few other meetings and hearings going on of some of the larger committees.
And some of our Members are shuttling back and forth between committees. Chairman McDonald will be here in a minute, as will Senator Kissel and Representative O'Neill.
But in accordance with our rules, I'm obligated to convene the public hearing at this time. And we will follow the usual procedure, which is elected municipal officials or chief elected officials and state department heads will testify during the first hour
And, following that, we'll go to the members of the public. If you haven't signed up already, you should do so. There's a lottery system which governs the order in which you are called upon. So with that, we'll begin.
First person is Colleen Murphy, the Executive Director of the Freedom of Information Commission. And for those of you who have cell phones, I'd kindly ask you to put them on vibrate or silent, please.
COLLEEN MURPHY: Good afternoon, Representative Lawlor and Members of the Judiciary Committee. I'm Colleen Murphy. I'm the Executive Director and General Counsel of the Connecticut FOI Commission.
I'm here today to testify in favor of House Bill 5528, AN ACT CONCERNING THE FREEDOM OF INFORMATION ACT. First, I want to thank this Committee very much for raising this bill and for providing a public hearing opportunity today.
This bill contains three proposals, all of which are sponsored by the FOI Commission. I'd like to speak briefly to each of these proposals, and will deal with them in order of their import to the FOI Commission.
First, Section 3 of this bill would ensure public access to certain kinds of court records. It would do so by providing a much-needed definition of the term administrative functions in the FOI Act, which is the term that determines whether records of the Judicial Department are guaranteed to be open to the public under the FOI law.
Any record that is not related to the Court's administrative function cannot be accessed under FOI. The bill largely carves out the areas that will be subject to FOI.
Those matters that relate to the institutional machinery of the judicial branch, including budgeting, accounting, rulemaking, facilities, physical operations, docketing, record keeping, and scheduling.
This definition is not aimed at records that relate to decision-making in individual court cases.
The FOIC put forward a proposal nearly identical to this last year in the aftermath of the now notorious Clerk v FOI Commission case, wherein the Supreme Court flabbergasted almost everyone when it declared, in a four to three decision, that basic, computerized docketing information was not accessible to the public under FOI.
Despite the well-intentioned and positive reform efforts by the Judicial Branch on its own, to shine light on the courts, the FOIC firmly believes this legislation is necessary.
There has already been one case, currently on appeal, where the FOI Commission, following the law established under the Clerk decision, had to conclude that it had no authority to order the disclosure of docket sheets.
By passing this bill, you will ensure that the public will be entitled to this basic information.
The second part of this bill, Section 4, requires the FOI Commission, somewhat reluctantly, to switch gears a bit, and urge this Committee to pass legislation that calls for the nondisclosure of government employee addresses.
At present, the FOI Act exempts certain categories of employees' addresses, but not all. Initially, the exemption was designed to provide security to certain at-risk employees, such as police officers, prosecutors and others involved in the criminal justice system.
Now the exemption applies to those categories, plus others who have been able to get their group exempted. The result is one that is both unfair and without a rational basis.
For instance, a secretary at the Department of Children and Families, her address is protected, while the address of a secretary at Consumer Protection is not.
This legislation will level the playing field by exempting all government employee addresses. Finally, the third provisions of this bill, contained in Sections 1 and 2, is purely technical and organizational in nature.
It would simply relocate the minutes requirements from one section of the law to another.
The FOIC feels that such a relocation of this requirement will benefit the public insofar as it will be easier to locate that provision, and is a much more logical place for it. Thank you. I'd be pleased to answer any questions you may have.
REP. LAWLOR: Thank you very much. In your initial part of your testimony, you referred to the decision of the Supreme Court as flabbergasting, I think, was the word you used.
And I agree with you, actually, and I think there was a lot of consequences, in terms of the Legislature's views on what the public policy ought to be in openness.
And the good news is the Judicial Branch has come around considerably under the new Chief Justice, and her de facto predecessor, Justice Borden, they put all of the docket information online now.
And they put all the criminal conviction information, actually, online now including speeding tickets. So you can check out your neighbor, see who's got a speeding ticket, things like that.
But what was equally flabbergasting was the decision of the FOI Commission itself not to file a motion for reargument after that decision came down. Why was that? Do you recall?
COLLEEN MURPHY: Yes. I do recall. The Commission felt that this would be best determined by the Legislature. I think, especially, our chairman felt that we should put this back in the hands of the Legislature.
And that is why the Commission put forward a bill to define administrative functions. So I think our Commission had great trust in the Legislature that it would, following that decision, take a step, and pass law to make sure that another case like that wouldn't occur again.
REP. LAWLOR: Well, I guess the problem is that it stands today as a decision of the State Supreme Court, which is binding on judges, etc.
So notwithstanding the changes we have made or could make in the FOI law, I think that the precedent that that represents is kind of unfortunate, put it that way.
And I think many of us wish that there had been an opportunity for reargument and reconsideration by the court, you know, for a lot of reasons, which are well established, that decision itself is tainted.
But it still stands as good law in our state, and that's, you know, I know we've expressed that frustration before, but sometimes being flabbergasted by decisions of public entities goes beyond the court itself in this case. I think the FOI Commission ought to really think about how they came to that decision.
COLLEEN MURPHY: I would have to say, Representative Lawlor, that as I indicated in my testimony, that a case came before the Commission where the Commission had to follow Clerk, and I think that point that you're making is certainly being driven home now.
REP. LAWLOR: There you go. Okay. Senator McDonald.
SEN. MCDONALD: Thank you, Mr. Chairman. I just wanted to follow up on that. I can't let the point go. And I don't understand.
Still, to this day, I'm trying to understand why the Commission thought that the response, if any, to that decision, should come from this body, as opposed to asking the court to analyze its decision again, in light of the circumstances that were brought out during that period of time after the release of the GA 7 decision.
I mean, clearly, we all know that it was a very unfortunate set of circumstances that led up to the release of that decision.
And once it became known that considerations other than the merits of the case were being brought to bear on that case or on that decision's release, why did the Commission just leave it on the table and not ask for reconsideration or reargument? And, follow-up question, what was the vote of the Commission to do so?
COLLEEN MURPHY: I can only reiterate what I said to Representative Lawlor, but I will say that one of the thoughts of one of the members of the Commission was that there had been no showing, despite all of the furor that occurred after the holding up of the decision, that there was indication that there had been wrongdoing on the part of the judges who had decided the case, that there was any error in the decision itself.
So I think the Commission felt that the best course would be to accept what the court had said, but to take its own argument to the Legislature to amend the law to make sure that the definition, which has caused a bugaboo at the Commission for a long time, to make sure that that definition was then clear.
And, as you know, Senator McDonald, there were those who argued for the exact position that you're arguing today. But, sometimes, that's how it goes.
SEN. MCDONALD: Well, including the staff, correct?
COLLEEN MURPHY: Correct.
SEN. MCDONALD: Okay. So I just want to be clear that the staff of the FOI Commission, including its staff attorneys, urged the Commission to move for reargument. Is that right?
COLLEEN MURPHY: That is correct.
SEN. MCDONALD: Okay. And just so we're also clear, a motion for reargument before the Supreme Court is no more than ten pages, actually, like any motion would be before the court, right?
COLLEEN MURPHY: I believe so.
SEN. MCDONALD: All right. So for want of ten pages, this whole thing has been left lurking over the Commission, over the court system, and now the Commission is saying it is our responsibility in the Legislature to clear it up?
COLLEEN MURPHY: Well, it may be a case of, you may view it as a case of finger pointing, but I think that the Commission felt that there possibly needed to be a definition in the law, and that the only place you can go to do that is the Legislature.
SEN. MCDONALD: And what was the vote of the Commission?
COLLEEN MURPHY: I am not certain. I think it may have been three to one, but I can certainly check that for you and let you know.
SEN. MCDONALD: Thank you very much.
REP. LAWLOR: Are there further questions? If not, thanks again.
COLLEEN MURPHY: Thank you.
REP. LAWLOR: Next is Judge Quinn.
JUDGE BARBARA QUINN: Good afternoon. I'm Barbara Quinn, and I'm here as the Chief Court Administrator of the Judicial Branch. I am here to discuss two of the bills that are pending before you.
And the first of those is the Freedom of Information Act, House Bill 5528. And, as you can imagine, from our previous discussions, we have some serious concerns about the proposal.
Specifically, Section 3 of the bill would define administrative functions for purposes of the Act.
And while we support clarifying the term, we do not support the following language in the bill, which is the inclusion of rulemaking within that definition, as we believe that it may be unconstitutional.
And we support or suggest the following language that would cover most of the issues that the bill addresses, all matters not directly related to judicial activities in case cases, rather than the language that appears on Lines 52 and 53 of the bill.
We do believe that administrative function should be defined as including the management of the internal institutional machinery of the court system, accounting, budgeting, personnel, facilities, physical operations, scheduling, record keeping, and docketing.
And, as I mentioned, the major quarrel we have with the bill is rulemaking. And, as you now know, the docket sheets, and, as I think Representative Lawlor mentioned, are now available.
And under the leadership of the Chief Justice, we have moved forward to making sure all these matters are public.
The rulemaking process should not be defined as an administrative function under the Act because it is inherently adjudicatory and not administrative.
By way of background, the Rules Committee is a body composed of judges of the Superior Court, and its function is to consider rules, changes and the practice of the Superior Court and to recommend amendments to the Practice Book.
And as the former Chief Justice, Ellen Peters, stated in the Rules Committee of the Superior Course case, a 1983 case, it's cited in my printed testimony, the Rules Committee plays no role in the management of the internal institutional machinery of the court system.
It is charged instead with the responsibility of formulating rules of practice and procedure that control the conduct of litigation. It sets the parameters of the adjudicative process that regulates the interactions between individual litigants and the courts.
This doesn't mean that the committee should not be open, and we strongly believe that it should. We just simply think that it should not be governed by the Freedom of Information Act.
Designating a matter as adjudicatory does not mean that it cannot be accessed by the public. The Constitution mandates, with limited exceptions, public access to court proceeding, and the Rules Committee proceedings are open to the public.
Proposed amendments to the Practice Book are published in The Law Journal, and are subject to a public hearing.
The list of members, minutes, meetings, notices, and agendas are posted on the website of the Judicial Branch for both the Rules Committee of the Superior Court and the Appellate Rules Committee.
The meetings themselves are now open to the public and the press. Other Judicial Branch meetings are also open to the public, the annual meeting of the judges, the Executive Committee of the Superior Court, the Board of Examiners of Court Reporters, Legal Specialization Screening Committee, and the Code of Evidence Oversight Committee.
And these are meetings that are noticed on the branch website. And I believe that this demonstrates that the branch is committed to conducting business in an open and transparent fashion.
Chief Justice Rogers and I firmly believe that the more transparency and openness with which we do our jobs, the greater the degree of trust, confidence, and respect the public will have in us.
The branch is committed to doing our part to ensure openness for all aspects of Connecticut courts, and I urge the committee not to adopt the language in the section.
In addition to these concerns, we're also concerned about Section 4 of the proposal, which would eviscerate the protections currently provided to, among others, judges and Judicial Branch employees, and it would allow the home addresses of the people who are currently protected to be disclosed by any office or agency that has that information, except for their employer.
So, for example, in a judge's case, the town clerk could disclose the home address, if that should be a question. Currently, all public agencies are required to maintain the confidentiality of specified employees and officials' home addresses.
And while it is true that if an employee or an official does not provide the agency with notice of this protection, it may not be in a position to comply with the law.
The solution to the problem should not be complete elimination of the protection. And I would ask you not to act favorably upon the provision. So I thank you for your consideration about those remarks.
The second bill I have to talk about is House Bill 5036, which is AN ACT CONCERNING SALARIES OF JUDGES, FAMILY SUPPORT MAGISTRATES, AND REFEREES.
This bill, which was proposed by the Governor, would raise the salaries of judges, support magistrates, and referees by 2%, effective January of 2009.
And I would like to take this opportunity to thank the Governor for proposing the bill. And the judges truly appreciate her support.
However, we have endorsed the recommendations of the Commission on Compensation of Judges and Elected Officials, which proposes a new mechanism for determining the salaries of judges and elected officials.
As you probably know, judge's salaries are established by statute, and that means that no judge can receive an increase unless the Legislature acts to increase the amount specified.
And while most state employees receive salary increases based on specific schedules, judges and elected officials do not receive periodic merit or cost of living increases.
In order to address this situation, last year, the Compensation Commission recommended that the salaries of judges be linked to those of Executive Branch managers.
And although their report for 2008 is not yet out, I'm told that they will make a specific and similar recommendation for this year. So we would ask that you consider that linkage.
I would also like to point out that Connecticut would not be on its own in linking judge's salaries to those of other groups of individuals or cost of living increases.
Eleven other states now do so some of them to state employees, some to federal judges, and some to the consumer price increase.
And I think fair pay is an issue around the country because attracting qualified judicial candidates becomes more difficult if the pay is not commensurate.
And I believe that this committee heard some of the new nominees last week about those concerns.
Turning now to a related matter, although this is not before you, I just want, briefly, to take this opportunity to talk about another category of judicial branch employees who are in need of a raise, and those are our temporary assistant clerks.
It is an area of great concern to us because TACs have become essential to the operation of our judicial district court. These individuals, most of whom have law degrees, supplement a shortage of full-time staff and provide invaluable assistance to the judges in the courtrooms.
They perform almost all of the functions of permanent staff, and we currently have approximately 120 temporary assistant clerks doing work that would otherwise be performed by 100 full-time staff.
And as temporary positions, it's reasonable to pay them at a rate less than the permanent, full-time staff. But they are currently paid less than one-half the hourly rate of their full-time counterparts, and have received no increase for the last eight years.
We have addressed this matter with the Appropriations Committee, and are hopeful that it will be provided in the recommended budget, although it is not included in the Governor's recommended budget.
And we would appreciate your support in this matter. Thank you, and I'd be happy to answer any questions.
REP. LAWLOR: Thank you, Your Honor. Senator McDonald.
SEN. MCDONALD: Thank you, Your Honor, for your testimony. I wanted to ask you a couple of questions, with respect to both of the bills that you testified about.
I just want to be clear that I understood your testimony. You are in favor of including within the definition of administrative functions information relating to docketing?
JUDGE BARBARA QUINN: Absolutely.
SEN. MCDONALD: Okay. So would you agree that that legislative definition would effectively overrule the GA 7 decision?
JUDGE BARBARA QUINN: It would, certainly, overrule that precedent, if it became law.
SEN. MCDONALD: Okay. And the branch is in favor of us doing that?
JUDGE BARBARA QUINN: Yes [inaudible].
SEN. MCDONALD: And I was under the impression, reading it again here online, that the decision in the GA 7 case said that docketing information was part of the adjudicative functions of the branch, and, therefore, within the constitutionally protected prerogatives of the branch. Could you please square for me that circle?
JUDGE BARBARA QUINN: I'm not sure I can, but I will say, as you know, the Public Access Taskforce recommended, and Justice Borden adopted last year the providing of that information within the branch.
And I think the sense is that it is, the case notwithstanding, more administrative in nature than adjudicative. I am aware of what the case says.
SEN. MCDONALD: Okay. Well, is it your opinion, as the Chief Court Administrator, that the GA 7 case was wrongly decided?
JUDGE BARBARA QUINN: I don't think it's my place to express to you here, in my role as a Superior Court judge, my position with respect to a Supreme Court case. I think that's a fair way to answer your question.
SEN. MCDONALD: Your Honor, that's a fine answer. I'm going to, however, come at it from a different peg hole, as lawyers are known to do. Is it your testimony that we would, in adopting this bill, we would be passing a constitutional piece of legislation?
JUDGE BARBARA QUINN: To the extent it's my prerogative as one of many Superior Court judges to pronounce upon constitutional matters, which typically do not arise before us in that role, and, certainly, not from an administrator's position, as I have now.
It is my sense that what you say is correct, and the branch, as I say, supports including docket information within the terminology of administrative functions.
SEN. MCDONALD: You're not urging us to pass something that you believe is unconstitutional?
JUDGE BARBARA QUINN: That's correct. And I think I've taken the stand with respect to what it is the branch believes to be encroaching upon a constitutional area.
SEN. MCDONALD: Okay. So the branch is of the opinion that we can pass legislation that would effectively overrule the GA 7 case? That then leads me to my next question.
If the Legislature can legislatively redefine what our administrative functions to include docketing information, what would prevent us from redefining what rulemaking is for administrative purposes.
JUDGE BARBARA QUINN: I think, under the Constitution and the common law, those issues are more deeply imbedded than, perhaps, administrative functions.
But I will tell you, it's been a very long time since I took constitutional law, even though I recall winning the book prize. But I won't tell you how many years ago that is, and I don't routinely carefully parse the details of the constitutional parameters.
But it is our belief, as stated in the testimony, that with respect to rulemaking, it does begin to impinge upon the constitutional mandates.
SEN. MCDONALD: Well, okay. Then let me break that down. The rulemaking, or I should say the Rules Committee of the Superior Court, under the new regime, conducts meetings that are open to the public.
JUDGE BARBARA QUINN: Yes. Yes.
SEN. MCDONALD: Correct? Okay. So, specifically, what information would not be subject to public disclosure? Let me put it this way.
If somebody can go to the Rules Committee meeting, and sit there and listen to the members of the Rules Committee discuss and debate proposed changes, that, traditionally, isn't something that the courts do in public, if you're adjudicating a case, correct?
JUDGE BARBARA QUINN: Correct.
SEN. MCDONALD: No member of the public is allowed to walk into the conference room of the Supreme Court and watch them debate the merits of a proposed case, right?
JUDGE BARBARA QUINN: Correct.
SEN. MCDONALD: So members of public can go in and sit down before the Rules Committee and watch this process?
JUDGE BARBARA QUINN: Right.
SEN. MCDONALD: And the branch has no problem with that?
JUDGE BARBARA QUINN: And participate in the public hearing that has been held, for many years, to make their comments, and, indeed, as happens routinely, make proposals to the Rules Committee about matters which they think need to be addressed. All of that is part and parcel of the activity.
SEN. MCDONALD: Okay. So members of the public can sit, listen to the process, can testify about proposed rule changes. They have access to drafts of the proposed rules?
JUDGE BARBARA QUINN: Well, as they're proposed, in final form, yes.
SEN. MCDONALD: So what information in that process actually isn't being shared with members of the public that would still fall within the scope of what you testify are adjudicative materials?
JUDGE BARBARA QUINN: The process by which they then move forward and are voted upon, and also the powers that adhere to the branch and, obviously, are then acted upon.
But as I think the case by Justice Peters indicates, and it's well worth reading, she sees that as within the parameters of the adjudicative process.
Or perhaps you could look at it by way of another phrase that one reads occasionally in Supreme Court law. It's within the penumbra of what is encompassed within the adjudicative process. I don't know if that helps answer your question.
SEN. MCDONALD: Unfortunately, it doesn't. My question is, what documents? I mean, I understand that there may come a time when people have conversations between and among themselves that happen, and that's not something that necessarily has to happen on the record.
But, specifically, what documents that would be subject to FOI, if it was brought within the scope of our definition of administrative functions, what documents would not be available to the public? I mean, we've already established that the drafts would be, right?
JUDGE BARBARA QUINN: I don't think I answered it that way. I don't think the drafts would be. The final, published product that appears in The Law Journal, which the public hearing is then held, I mean, you have the agendas.
You have the proposed rules, as they come before the committee, but the process by which the committee, internally, then formulates what it is that it will publicly propose, I think that process is not public, if that's fair to try to carve out for you what I think is not included.
SEN. MCDONALD: Well, then let me posit a hypothetical to you then. If I had a grand idea of a proposed rule change--
JUDGE BARBARA QUINN: Right.
SEN. MCDONALD: Well, don't use me. I'm a public official. If a member of a law firm had a great idea about a proposed rule change and submitted a letter to the Rules Committee, would that be a public document?
JUDGE BARBARA QUINN: Yes. I think so.
SEN. MCDONALD: It would be?
JUDGE BARBARA QUINN: Yes.
SEN. MCDONALD: Okay. How do we know that in this language, if we don't have that written there?
JUDGE BARBARA QUINN: Well, as it now stands, the agenda and the materials are made public, what it is that is going to be considered.
SEN. MCDONALD: Well, but, I mean, as I recall it, there was a proposed rule change not too long ago that came from a number of members of the bar, as a result of the legislation we passed about appointing conservators.
And a number of very involved lawyers went through those materials diligently and submitted proposed rule changes to the Rules Committee, right? So that information would be public. Why isn't that adjudicative in your analysis?
JUDGE BARBARA QUINN: What I would say is I think, in your questions, if I might be so bold [inaudible] you're narrowing to the documents rather than the ultimate process and the thinking that goes into it what's adjudicative and what's not. I think I wouldn't put it so narrowly.
SEN. MCDONALD: Well, the problem with that, Your Honor, is that we are trying to create clearly identified parameters--
JUDGE BARBARA QUINN: Right.
SEN. MCDONALD: --so that the members of the public know what they have a right to access and what they don't have a right to access.
JUDGE BARBARA QUINN: Right.
SEN. MCDONALD: And the problem with the position that the branch is taking is that it leaves it open to interpretation that is ill-defined, and, frankly, quite subjective about what is or is not within the scope of the public domain from within the branch.
And so I'm trying to get it to a bright-line test, and the branch seems to want to keep it loose so that they could react to any particular circumstances that might arise.
JUDGE BARBARA QUINN: What always has been the case, even well prior to the events of the past few years, is that the proposed amendments to the Practice Book Rules are published in The Law Journal and are subject to a public hearing.
That's not new. And any amendments that then move forward from that point are published. We have added to that that the Rules Committee meetings themselves are open, and the material considered by the Rules Committee is made available.
So that's the piece that's new, if you will. Does that help in this analysis? I think it is relatively well defined.
SEN. MCDONALD: Let me say, I certainly will admit that you are trying to be helpful. I don't know where that leads us though. I mean, the GA 7 case clearly determines that the branch can move the line, depending on whether they want to move the line, about what's adjudicative or not.
Now we are moving the line back to the point where we're saying docketing information is public, when, just in 2006, the Supreme Court, in a four to three decision said it was unconstitutional. So we're switching back, and I'm just trying to figure out where we are going to end up.
JUDGE BARBARA QUINN: I guess I would join you in the camp of the people who wished that the motion for reargument in the GA 7 case had been heard. It would make this aspect of it a little simpler.
SEN. MCDONALD: Okay. Let me see if I can bring this to conclusion because the reason it gets so complicated is that the GA 7 decision, itself, was built upon other precedents.
Specifically, it was built upon the Rules Committee of the Superior Court v Freedom of Information Commission, a 1984 position, right?
And I don't know if Rafie Podolsky is in here, in the room at the moment, but he had a lot to do with it.
JUDGE BARBARA QUINN: Yes.
SEN. MCDONALD: And so if the precedent upon with the GA 7, oh, let me begin again. If the GA 7 decision was wrongly decided, and, apparently, we can say that it was wrongly decided if we pass this legislation, then what's to insulate the rules of the Superior Court decision from 1984 from the same argument that what is adjudicative is exclusively within the ambit of the Judicial Branch's determination and not the Legislative Branch's?
JUDGE BARBARA QUINN: I think the GA 7 case is an extension of the earlier case, and, you know, there have been other instances where the Legislature has acted with respect to Supreme Court precedents, such as State v Courchesne, in terms of the interpretation.
There are other such examples, I think, that do exist and that have been honored. I realize it still doesn't answer the question. I think it's a difficult line to draw, and I can't say as I have a nicely worded, one-sentence answer to provide to you today.
SEN. MCDONALD: Okay. And, just, finally, just so I can have the benefit of your perspective on this, how do you, well, what is an adjudicative function, from your perspective?
Because I have to tell you, I looked up the word adjudicative in Webster's, and it just, it seems to anticipate an adversarial situation where you have a case or controversy, and it's being resolved in an adversarial system by adjudicative power.
And I have never quite understood how that notion of an adversarial system resolving a case or controversy can be transposed to making up new rules by which future litigants may be bound. So I'm trying to get from you what your understanding of the word adjudicative is.
JUDGE BARBARA QUINN: What I would say, with respect to adjudicating a case or controversy, it does proceed according to certain rules, and the shape of those rules does impact upon that process.
And as former Chief Justice Peters indicates in the case, The Rules Committee v FOI, it does shape or regulate those interactions between the individual litigants and the courts.
So, you know, it really depends on how narrowly or how little bit larger you draw that circle. I think it's a very hard place to make a fine, bright-line test.
SEN. MCDONALD: Okay. Let me just move on, just briefly, to the other bill that you testified about.
JUDGE BARBARA QUINN: Yes.
SEN. MCDONALD: And I want to commend you and the branch for, at least, raising the issue in your testimony about the temporary employees. My understanding is that it has been eight years since the temporary employees received a raise, right?
JUDGE BARBARA QUINN: Yes.
SEN. MCDONALD: And, just so we are clear, these, the term temporary is a misnomer, with respect to these individuals, isn't it?
JUDGE BARBARA QUINN: Well, the temporary assistant clerks have, shall we say, there are a good number of them that, indeed, are temporary.
But it has always been a way for attorneys to gain entrance into the Judicial Branch, and so some of them are permanent, in the sense that they stay temporary until they can access a permanent employee position.
And so it's a structural difficulty that we have within the branch that I think will take us some years to solve. But we wanted to begin by at least raising the issue of their pay.
SEN. MCDONALD: And I couldn't agree with you more. But I think some people would think that the term temporary assistant clerk would have some type of temporal limitation on it.
JUDGE BARBARA QUINN: Yes.
SEN. MCDONALD: And any limitation is self-imposed by the employee, not by the branch?
JUDGE BARBARA QUINN: That's correct.
SEN. MCDONALD: So we have temporary employees who have been denominated as temporary for five, six, seven, eight years?
JUDGE BARBARA QUINN: Well, I don't know if it extends quite that long, but it certainly extends to five and six years, and, you know, for some of them, it's an enormous hardship.
SEN. MCDONALD: I was talking to one who has eight years under her belt, just a week or two ago.
JUDGE BARBARA QUINN: Yeah, well, I'll defer to you with that.
SEN. MCDONALD: So and just so we're clear, these are employees of the branch who do not have any sick time. They do not have any vacation time, who do not have any holiday time, right?
If they're not, and if the branch closes early because of snow, the clock is off for them when the branch closes?
JUDGE BARBARA QUINN: Well, they encompass a sort of two-week period, so it might be that they could make up some time that they lost on a snow day. And after six months, they receive some health and other benefits. But, yes, they have no paid days off, no vacation and no sick leave.
SEN. MCDONALD: And let me just ask you, since we are considering pay raises for judges and family magistrates, and you're proposing that temporary assistant clerks or temporary employees also be involved in that, is it the position of the branch that you think that all of those categories should be treated simultaneously in funding?
JUDGE BARBARA QUINN: It would be nice if that could happen, yes.
SEN. MCDONALD: I very much appreciate your testimony, Your Honor.
JUDGE BARBARA QUINN: Thank you.
REP. LAWLOR: Are there other questions? Senator Roraback.
SEN. RORABACK: Thank you, Mr. Chairman. First, I wanted to ask, Judge Quinn, you know you're creating legislative history in this colloquy with Senator McDonald?
JUDGE BARBARA QUINN: Probably, yes, I am. Although, as I keep repeating, I'm only one of many Superior Court judges [inaudible] ask me about adjudicative functions, my role doesn't extend to make pronouncements about that.
SEN. RORABACK: You'll never be called upon to interpret this legislative history to draw conclusions from it. But the question I have is I can't understand what the distinction is.
When you say that all the Rules Committee meetings are open to the public, their agendas are, what is it that would be exposed if that process were subject to FOI that's not exposed today by the nature of the business they conduct?
Or maybe it's just a matter of principle, but we do everything consistent with the rules of the Freedom of Information Act, but we don't want to be labeled as subject to it. And if that's the case, I see some of your staff nodding that that might be the case, why?
JUDGE BARBARA QUINN: That's a piece of it, and the internal--
SEN. RORABACK: But as kind of a preliminary proposition, do you, is there any distinction you can draw between the Rules Committee conducts its business and what would be required of them if they were subject to the Freedom of Information Act?
JUDGE BARBARA QUINN: I think, their internal debates and other materials that they--
SEN. RORABACK: Oh, I'm sorry. Internal debates. Does that suggest that they do business other than in their public meetings?
JUDGE BARBARA QUINN: They do have subcommittee meetings to make--
SEN. RORABACK: Subcommittees, like formal subcommittees?
JUDGE BARBARA QUINN: They're not, I guess you could say they were formal or informal. I don't know what you'd say. Some of their rules, their proposed rules that they're considering are referred to the Civil Commission.
There is an equivalent juvenile group that provides input that then reaches the agendas, and all of that material moves forward. That is then public, but the process of debate within the system is not. I see that as becoming part.
SEN. RORABACK: And now I'm confused because your testimony says that the meetings of the Rules Committee are open to the public.
JUDGE BARBARA QUINN: Yes. They are.
SEN. RORABACK: But then you're saying but there are some subsets of the Rules Committee whose meetings are not open to the public.
JUDGE BARBARA QUINN: I think that's not the correct way to say it.
SEN. RORABACK: I'm not trying to put words in your mouth. I'm just trying to understand it.
JUDGE BARBARA QUINN: Yeah. There are rules that require careful consideration by the groups that would be interested, let us say the CBA or some.
And so the committee seeks input from such groups. And as that material comes forward, it does go on the agenda of the Rules Committee. Is that helpful?
SEN. RORABACK: Can you give me, not completely. I'd just like an example of something that you do that violates the Freedom of Information Act that you'd like to continue to be able to do.
Oh, no. I'm not saying that pejoratively, but I'm drawing from you information that there are some things that you do which would violate the Freedom of Information Act, and that's what you're protecting.
JUDGE BARBARA QUINN: I can't, as you phrase it that way, I can't come up with anything other than the things that I've articulated here.
SEN. RORABACK: And I'm not phrasing that way to be argumentative.
JUDGE BARBARA QUINN: Well, I hear you. I know you want this information.
SEN. RORABACK: I'm framing it as an academic proposition, and maybe because it would help me better understand what interest the branch is seeking to protect.
And without a specific, concrete example of something that transpires in reality and an accompanying justification or rationalization of that, I think it's hard for this committee to do its work.
And so that's my thinking on the matter, and I guess why it's so troubling is because I can't make an informed opinion about the wisdom of your position without having an example of what it is that you're seeking to protect.
JUDGE BARBARA QUINN: Well, I'm sorry I didn't come prepared with one. Perhaps I can send you some detail, shortly, that would be more directly appropriate to the questions that you've asked.
SEN. RORABACK: Thank you. I appreciate that. Thank you, Mr. Chairman.
REP. LAWLOR: Are there further questions? Your Honor, I just had one on the same point because I'm still intrigued by the idea how the rulemaking process, undertaken by the Rules Committee, could be somehow adjudicative. And I'm guessing [Gap in testimony. Changing from Tape 1A to Tape 1B.]
JUDGE BARBARA QUINN: Certainly. It depends on the nature of the rule. I mean, there might be a rule that could be perceived to have a retroactive effect, so perhaps you wouldn't want to do it. But, yes, I would generally agree with that.
REP. LAWLOR: But if the Rules Committee was contemplating a rule to apply it in a particular pending case, can you imagine a circumstance where they could debate a rule because it's going to affect one, and they're referring to a specific case currently pending, changing the rule so that it would apply to that case?
Does it seem to you that would be improper for the Rules Committee to be considering changing a rule of general application, just because of one, current case, so that something would happen different in that case?
JUDGE BARBARA QUINN: That's very hard for me to imagine, the specifics of that. So I'm having difficulty with that.
REP. LAWLOR: Because I'm trying to imagine how rulemaking is in some way adjudicatory or adjudicative, and it seems to me the closest you got to making a rules apply to a particular case so that you're helping to determine the outcome of that case, the more improper it would be. So I just can't imagine how.
JUDGE BARBARA QUINN: I guess, what I would say, is a much wiser and more experienced mind than mine, Chief Justice Peters, certainly, has indicated that it was so.
But I will try to address the questions that have been asked about the distinction in short order. And I'm sorry it's not more of a useful colloquy.
REP. LAWLOR: Thank you. Are there other questions? If not, thanks very much, Your Honor. Next is Commissioner Lantz.
COMM. THERESA LANTZ: Good afternoon, Senator McDonald, Representative Lawlor, Senator Kissel, and Members of the Judiciary Committee. I'm Theresa Lantz. I'm the Commissioner for the Department of Correction.
And also with me today, if you have any questions that you'd like to ask, is my Chief Legal Advisor, Sandra Sharr, as well as my Director of Security, Michael O'Joy.
I appear before you today to express the Department of Correction's concerns about the provision of Section 4 of the Raised House Bill 5528, AN ACT CONCERNING THE FREEDOM OF INFORMATION ACT.
The purpose of Section 4 appears to extend to all governmental employees, the limitation on disclosure of their residential addresses, under FOI Act, that is currently granted only to those employees in identified high-risk positions.
In fact, the proposal would actually remove protection currently afforded to these high-risk employees. The bill, as it is written, limits protection of the information to the employees' own agencies.
However, another public agency holding the same information would not be prohibited from releasing it.
Residential addresses of state employees are held by a variety of other state agencies, such as the Department of Administrative Services, Office of the Comptroller, Office of State Ethics, Department of Public Health.
If the employee holds a state-issued professional license or certificate, that could be FOI'd.
This bill also would allow disclosure of personal information to include residential addresses of elected officials or residential addresses of officials and employees that appear on grand lists, tax delinquency lists, voter registrations, enrollment lists or application forms, or, quote, in any other record that is otherwise required by law to be disclosed to the public, unquote.
The Legislature passed the Residential Address Protection Law, which was 1-217, in 1995. When first passed, the law was known as the Hazardous Duty Statute because the officials and employees whose addresses were protected were viewed as the most at-risk for harm if their residential addresses were made available to the public.
At the time, protected officials and employees were judges, magistrates, public officers, police officers, Department of Correction employees and past and present state prosecutors and public defenders.
To the list were added Division of Criminal Justice inspectors, firefighters, employees of Department of Children and Families, employees of the Board of Pardons and Parole, judicial employees and public defender services division social workers, and members and employees of CHRO.
These concerns have not been reduced. Our concerns, actually, have increased. The majority of DOC employees and parole officers are classified as hazardous duty.
They work with accused and sentenced offenders in correctional institutions and those under community supervision. The work can be dangerous and the risks high.
Even those employees who do not work directly with the offender population have exposure to and can be affected by those who are incarcerated through their work and facilities and by decisions they may make in the course of their employment.
And if you have any questions regarding some cases, I'll be glad to give you a few. And I know that there is other staff from the department that are here also to testify, as the day proceeds.
Statute 1-217 and its amendments exempting the residential addresses of hazardous duty employees from disclosure were passed for good reasons.
If passed, House Bill 5528 will render these exemptions non-existent, and it fails to consider and analyze the legislative history of the passage of the original 1-217 and its amendments.
And it fails to employee a balancing test between the public policy favoring disclosure of government records and the public policy favoring the safety and security of certain classes of employees.
I hope that you can support our mutual commitment for staff safety by voting against the provisions of Section 4 of House Bill 5528. And I'll be happy to answer any questions that you may have.
REP. LAWLOR: Thank you very much, Commissioner. Are there questions? Senator McDonald.
SEN. MCDONALD: Thank you, Mr. Chairman. Commissioner, I'm just trying to work through this. Maybe I'm reading it wrong. I thought that this was getting rid of the itemized listing of employees who would have their addresses protected and having a global coverage for all agencies. Am I wrong?
COMM. THERESA LANTZ: What it does, the way it's written, Senator, and this is my understanding and my legal staff's understanding of it is that it globalizes it, but it only makes it specific to the agency that the employee works in.
So, in effect, right now the current law exempts those who are hazardous duty positions, like our DOC employees. Another state agency would not disclose our personal information.
The way this bill is written, another state agency would not be exempted from disclosing it. In fact, they would. And, as a result, we're trying to keep the protections that we currently have.
SEN. MCDONALD: Well, but under, and if you need your legal staff to help you work through this, that's fine.
But it seems to me that it's saying that it would protect the address from disclosure from that agency and from anybody else, except to the extent it appears on a grand list, a tax delinquency list, a voter registration list, or something else as required by law to be disclosed to the public. So wouldn't you have to, I mean, what other agencies would have that information?
COMM. THERESA LANTZ: Well, for instance, the Comptroller's office would have personal information. I think I laid them out. The Department of Administrative Services, Insurance Department.
Just to give you an example, an inmate did FOI personal information, my home address, all of the records regarding the insurance, to the Department of Insurance, on my property and my house.
And, fortunately, the Department of Insurance, knowing that I was covered under the current bill, notified me to let me know that that happened.
In reality, the way this bill is written, they would be giving that information out. I would no longer be exempted because it's not my agency.
It's another state agency or municipality could give that information out. And that's the concern we have, is that we actually feel like this proposal and this act actually takes away our protection.
There are other state agencies that carry our personal information, our residential address and information that they would have access to.
SEN. MCDONALD: Well, I mean, how would, how, if you lived in Stamford, how would the tax assessor in Stamford know that you were a public official--
COMM. THERESA LANTZ: Who's exempted?
SEN. MCDONALD: Yeah.
COMM. THERESA LANTZ: We would notify them. Currently, the way we do that is we advise our staff to notify their towns that they live in that they are exempted under the statute, and they request that the towns withhold any personal information, including residential.
SEN. MCDONALD: And is that, to the extent that you know, is that true for all of the other 11 categories of officials that are under the current law?
COMM. THERESA LANTZ: As far as I know.
SANDRA SHARR: I don't know exactly what other--
COMM. THERESA LANTZ: This is Sandy Sharr. She's my legal advisor.
SANDRA SHARR: I don't know what other agencies do. We can only speak for our own. And I know towns handle it differently because I just had a conversation with the Town of East Hartford over an issue that came up just last week.
SEN. MCDONALD: Okay.
SANDRA SHARR: So we don't feel, at the DOC, we don't feel that towns can be clairvoyant and knows who lives in their town. But, as the Commissioner stated, we do instruct our employees, if they want the protection, to contact their town and let them know that they are protected under this statute.
SEN. MCDONALD: I mean, I'm not trying to overanalyze this, but if you didn't pay your real estate taxes in your municipality, and the municipality had to bring a tax foreclosure action against you, under your proposal, they couldn't actually disclose your name and address, even though it's required to bring a lawsuit against you in a summons. I mean, you wouldn't be able to be named in a summons under your proposal.
COMM. THERESA LANTZ: It's not that we're proposing, it's what the law gives us now. And so what we don't want is to retreat.
We don't want to take away our current rights that we have related to ensuring that our residential address is kept confidential by the nature of our position. And what we do is we notify our municipality that this is confidential.
SEN. MCDONALD: Right. But if somebody brought a tax foreclosure against you, they'd have to name you, say Theresa Lantz, 123 Main Street, Stamford, Connecticut, and that goes into the summons and the complaint that gets served on you and gets filed with court. Under your proposal, that couldn't happen.
COMM. THERESA LANTZ: It's not a proposal. It's what is.
SEN. MCDONALD: Okay. I'll take a look at it. Thanks very much.
REP. LAWLOR: Are there other questions? If not, thanks again.
COMM. THERESA LANTZ: Thank you very much.
REP. LAWLOR: Well, we've reached the end of the first hour, and we have quite a few more public officials, but under our usual practice, we'll try and weave them into the public as we go.
So the first person on the public list is Mike Walsh.
MIKE WALSH: Good afternoon, Senator McDonald, Representative Lawlor, Members of the Committee. I'm Mike Walsh. I'm a trial lawyer here in Hartford, Connecticut, and I'm a member of the Connecticut Trial Lawyers Association.
And I'm here today as a representative of the Trial Lawyers Association to speak in support of Senate Bill 328, which is AN ACT CONCERNING COMPENSATION OF JURORS.
The purpose of this bill is to more adequately reimburse people that perform their civic duty and serve as jurors. It, essentially, established a graduated scale of reimbursement based on the size of their employer.
Connecticut statutes, the current statutes, currently, basically, obligate the employer presently to pay for five days of juror service, and then after that, the state pays at the rate of $50 per day.
And the unfortunate consequence of that is many people who want to serve as jurors can't because of the financial hardship it imposes if they have to serve beyond five days.
It also serves to greatly disrupt the jury selection process because we spend a lot of time actually dealing with questions of hardship and compensation because there is no set rule as to what employers, after the five days, do or don't do.
So it's the hopes of the trial lawyers that this bill that's being proposed would serve to make the composition of jurors more fairly representative of the communities in which we live in.
So we would, respectfully, urge the Committee to support the bill, and I'd be happy to answer any questions that the Members might have.
REP. LAWLOR: Are there questions? Senator McDonald.
SEN. MCDONALD: Thank you, Mr. Chairman. Just briefly, I understand what the goal is here. One of the arguments against the proposal that I've heard is that you are starting to skew the jury pool, potentially eliminating types of jobs or types of people who hold different types of jobs, in favor of larger employers.
Is that, I'm not articulating the argument well. I don't necessarily subscribe to the argument. But that's what I've heard, and I just want to see if you have any opinion on it.
MIKE WALSH: Obviously, that's not our intent. And I'm not sure I understand that argument, quite candidly. It seems to me, right now, if anything, it's more skewed.
Because by only requiring the employer to pay for five days, it tends to be that the bigger employers, a lot of times, do pay, and so those people are the only ones that served.
What we're hoping to do here, it's just a small step forward, but we're hoping to provide more compensation, for more people, at different size employers with the hopes that instead of just having people from large employers serving that a more widespread composition, a more cross-section of the community can be.
But I have heard that argument. Quite candidly, I'm not sure I understand it. It seems to me that this bill would do the opposite of that.
SEN. MCDONALD: Thank you.
REP. LAWLOR: Further questions? Okay. Thanks very much.
MIKE WALSH: Thank you.
REP. LAWLOR: Our next is Pete Costas. And just so people can get ready, as I said, we're going to try and weave in the state officials. So next will be Marie DeSousa. She'll be followed by Kevin Kane, and then we'll go to Kathy Zeiner.
ATTY. PETER COSTAS: Good afternoon, Senator McDonald, Representative Lawlor, Members of the Committee. My name is Peter Costas. I'm Past President of the Connecticut Bar Association, and currently serve as Chairman of the Taskforce on Multijurisdictional Practice and GATS.
And I'm here to testify to a limited version of Senate Bill 321. And I'd like to, just briefly, describe how we got to where we are.
For those of you who have not been familiar with what's been happening, we have, downstate, particularly, a number of corporations, which have many house counsel, many of whom are not admitted to practice in the State of Connecticut.
And we have had a decision or I should say a recommendation from the Unauthorized Practice Committee of the Connecticut Bar that their activity as house counsel violates the unauthorized practice of law.
We've also had a great deal of cross-border practice, with lawyers admitted in New York or Massachusetts coming into the State of Connecticut to provide some limited legal services, and it's a condition that we constantly refer to as don't ask, don't tell.
And that's why we brought it out into the open, along with the American Bar Association. So, currently, we have addressed the issue of house counsel to a large measure.
We're aware of some limitations that need to be analyzed and modified to modify the language of the statute, particularly foreign-trained lawyers cannot become certified or register under the present house-counsel rule.
So that's one of the items we need to change. We also, right now, are not able to allow these house counsel to provide pro bono services because they're not admitted to practice as full lawyers, if you wish, in the State of Connecticut.
There are a number of minor items like this, which the taskforce has continued in existence to receive the comments and questions, and we will be addressing many of these.
But to the problem at hand, Section A of Senate Bill 321 is one which we support strongly. It provides the vehicle to import into various proceedings the definition of the practice of law.
Until that Practice Book change was made to incorporate that language, we literally had a judge able to say, well, I find such-and-such to be the unauthorized practice of law.
There were no bright lines. Enforcement was very weak because you didn't have any good case law, certainly, no statutory law. So we brought the things to a head in the Judicial Branch, to the extent of getting two Practice Book rule changes, and Rule 5.5 and 8.5, with respect to the cross-border traffic.
This is, the change to A is basically a part of where we were last year but were, in the closing days of the session, to obtain passage of that provisions.
We do have some concerns with respect to the proposal to take out what we'll call the safe harbor for house counsel that exists in Subsection B.
There are concerns because we can't, right now, deal directly with the problem of lawyers who were not educated in the United States or were admitted first to practice in another country.
We should be able to address that fairly quickly and easily by the definition of practice of law and the importation in the preamble, if you wish, to the Section that is before you.
We do have a problem with respect to the proposed conversion of a misdemeanor into felony. It's not that anybody loves the charlatans who are in engaging in activity.
But it's not so simple. You have a number of people, many of whom would be lawyers and nobly doing very well, who could suddenly be felons, where we'd have broad, sweeping language.
And we are suggesting to the State's Attorneys, who are anxious to get teeth in the statute, that we will meet with them and attempt to work out language which would be more acceptable to recognize different status requirements for the various persons who could be found to be engaged in the unauthorized practice of law.
We've started on the discussion, the taskforce there. If the Committee has any suggestions of matters that we should review as well, we'd be pleased to hear from you, and we would be pleased to provide you with whatever information we have.
I have appended to my remarks, provided what I would call a sanitized version of the bill, which would leave everything in place, except for the gender changes and the important change to Subsection A. If there are any questions, I'd be pleased to answer them.
REP. LAWLOR: Thank you. And I would just say, at the outset, as it relates to the penalty, there's a separate effort underway to try and conform the various penalties provided for in the criminal law, based, sort of, on general category.
And, as it turns out, there are quite a few, arguably, draconian penalties for practicing different things without a license, whether it's, you know, podiatry or a hairstylist or whatever.
Many of them actually do have a felony provision for practicing those trades without a license. So I think the proposal about practicing law without a license sort of grew out of that.
One thing I've heard a good deal of discussion about, and I don't think you specifically addressed it in your remarks, and correct me if I'm wrong. Is there a new international treaty that's recently come into force, which?
ATTY. PETER COSTAS: Not yet.
REP. LAWLOR: Not yet? And what are the provisions of that, as far as you know, and has the United States ratified it at all? And where does that stand?
ATTY. PETER COSTAS: The United States hasn't been able to get its act together, to be very candid. So they are making a new effort to try and define it. It's called GATS. It's General Agreement on Trade Services.
And what it, basically, in principle, is requiring all member countries to open up the practice of law or other services to nationals of other countries.
So this is what it would be. I mean, you would be, basically, looking at a rule, 5.5, but instead of saying another state, you would say another jurisdiction.
And you'd have the same right of an attorney to practice, say, in Germany, to come into the United States to negotiate or work on some project, so long as it originates, the problem originates in his home territory or office.
So that's GATS. And, very candidly, it's surprising that it's taking so long to create the principle. They're called disciplines. They're attempting to define what the [inaudible] the World Trade Organization would require of the various states. So it's not there.
REP. LAWLOR: So it's not, but, in any event, it's not a carte blanche for a foreign attorney to come in here and practice any type of law?
ATTY. PETER COSTAS: No. We do allow for lawyers to come into this country, into this state and practice as foreign legal consultants, so long as their practice is limited to that area.
REP. LAWLOR: I understand.
ATTY. PETER COSTAS: And we do allow, by don't ask, don't tell, people like me, who go regularly over to Europe to deal with client's affairs there and others who come to this country to work on matters.
We've got to remember, we're global now. Whether we like it or not, we have global responsibilities. We have global requirements. It's our--
REP. LAWLOR: Thank you. Are there other questions? If not, thanks very much.
ATTY. PETER COSTAS: Thank you.
REP. LAWLOR: So next will be Marie DeSousa. Is Marie here? And she'll be followed by Kevin Kane. Is Kevin here? There he is. Okay.
MARIE DESOUSA: Good afternoon, Chairman Lawlor and Members of the Judiciary Committee. My name is Marie DeSousa, and I'm representing ACFSME Local 391, Connecticut State Prison Employees, North District.
Our local consists of approximately 1,800 members, comprised of correctional officers, food service workers, classification counselors, addiction service counselors, commissary workers, industries and maintenance staff.
I come before you today to respectfully request your attention to the proposed deletion of Section 4, 1-217 of House Bill 5528, as it relates to Number 3, Employees of Department of Corrections.
I stand in opposition of this proposed change, for it will compromise our goal of ensuring security measures and confidentiality needs for our members are met.
This proposed change will allow access to our member's residence address, thus causing another exposed danger to our members and families.
We work in an environment that is conducive to potential dangers on the job, but to allow our home addresses to be readily available through the Freedom of Information Act, we potentially enhance that danger away from the workplace, not just to our members, but their families.
The current law has given us a comfort zone that our families were protected from incarcerated inmates being able to reach them. Some of our members have gone to great lengths to avoid the inmate population from gaining their personal information.
Unlisted telephone numbers and post office boxes are not uncommon. We, as a union, recognize that public money pays our members' salaries, and can understand the argument for full disclosure for governmental employees, to a point.
But many of us have families that we come home to, and there are safety concerns that need to be taken under consideration for their sake, as well as our own.
Therefore, I encourage this Committee to help us protect our families, so we can continue to protect yours in the community, but not eliminate [inaudible] affords the loss of our safety net.
And I too, along with Commissioner Lantz, read the language on several occasions. And there is some clarification in the language that needs to be looked at.
Right now as Commissioner Lantz has said, we have the ability now to go to our local towns and fill out a form that will make our home address exempt.
And I want to make sure that that continues. So if my interpretation of the language is incorrect, just understand that the reason behind my being here today is to make sure that we keep our addresses confidential. I thank you for your time and consideration.
REP. LAWLOR: Great. Thank you very much, Marie. Are there any questions? Senator Kissel.
MARIE DESOUSA: Yes, Sir.
SEN. KISSEL: First of all, Marie, thank you so much for taking the time to come here this afternoon. It's great seeing you. Did you submit written testimony?
MARIE DESOUSA: I submitted it late. I had to work a half a day, so I got here late. But I have a copy, if you'd like to have it.
SEN. KISSEL: Well, I'm sure, even if you submitted it late, they're probably in the process of just having copies made or something like that. Before you leave, at least make, if you can make sure that I have a copy of it, that would be good.
MARIE DESOUSA: Okay. I will.
SEN. KISSEL: You know where my office is.
MARIE DESOUSA: Yes. They have about 50 copies [inaudible] before you came in.
SEN. KISSEL: Okay. Great. And I'm really happy that you're here on behalf of 391. Give my best to Mr. Peppy and everybody else there. And pretty soon, I'll have to have you back on my cable access show. But I think your points are well taken, and definitely taken into consideration.
MARIE DESOUSA: Not a problem. I'd be honored, Sir. Thank you.
SEN. KISSEL: Thanks.
REP. LAWLOR: Any further questions? If not, thanks, again, Marie. Next is Kevin Kane, and he'll be followed by Kathy Zeiner.
ATTY. KEVIN KANE: Thank you, Representative Lawlor, Senator Kissel, and Members of the Committee. My name is Kevin Kane. I'm the Chief State's Attorney.
And with me at the table here is Patricia Froehlich. She's the State's Attorney, the Judicial District of Windham. And we'd like to comment on a couple of bills. We'll do it separately.
I think Attorney Froehlich will go first, if it's all right with the Committee, on two of the bills that she wants to, that she's going to offer comment on from the Division of Criminal Justice.
ATTY. PATRICIA FROEHLICH: Thank you, Kevin. Good afternoon. I'd like to support Raised Senate Bill 321, with respect to the unauthorized practice of law.
As Windham's State's Attorney, I learned, about two years ago, of an attorney who resided in our judicial district who, after going through the disciplinary process, had been suspended from the practice of law, but continued to engage in the practice of law.
I sought an arrest warrant, charging him with, among other things, a violation of 5188, which prohibits the practice of law by persons who have not been admitted.
I thought that was the right charge for this person who had dealt with a client, given legal advice, accepted money, used letterhead. I was wrong.
The defendant, after arrest, filed a motion to dismiss, and the court, correctly, granted the motion to dismiss with respect to that count of the information because 5188 addresses only those persons who have never been admitted to practice and does not address those attorneys who have been admitted but are no longer in good standing.
We submitted, as part of the Division of Criminal Justice package, a bill addressing the unauthorized practice of law, and we sought, and Raised Senate Bill 321 also addresses a higher penalty than the existing penalty.
I think that's appropriate. We, as attorneys, are and should be held to a higher standard. The existing penalty is less than that for a Class C misdemeanor.
The attorney who I was prosecuting eventually had approximately 30 grievances filed against him. I say I was prosecuting because in an incredible twist of irony, that person filed a grievance against me, so I recused myself, and the Office of the Chief State's Attorney is now continuing the prosecution.
But I ask you to enact this statute, and impose a higher penalty, and let Connecticut join the other states which differentiate between those persons who engage in the practice of law, never having been admitted, and those persons who were, are attorneys, but are no longer in good standing.
I'd also like to support Raised House Bill 5722, Court Services for Victims. It's been my experience that whether a crime is a misdemeanor or a murder, whether it's a simple assault or a sexual assault, the criminal justice process is a foreign one for crime victims.
It can be a frightening one. It can be a frustrating process. I have worked with victim's advocates throughout my career.
I should tell you that as part of my role as State's Attorney, I do sit on the Board of Directors of the Connecticut Coalition Against Domestic Violence.
I am the Chief State's Attorney's designee as Chair of the Commission on the Standardization of Collection of Evidence in Sexual Assault Investigations, and I am a statutory member of the State Victim Advocate Advisory Council.
So I've had the opportunity to work with victims, both in my role as a prosecutor and also from an administrative perspective.
Whether the advocate in court is from the Office of Victim services, from Connecticut Sexual Assault Crisis Services or from a member program of the Coalition Against Domestic Violence, that advocate is absolutely invaluable with respect to dealing with victims.
Whether the prosecuting is engaged in the frenetic pace of a GA or the rigors of a capital felony trial, it's often difficult, if not impossible, to meet the victim's needs during the court day, and the victim's advocates serve to do that throughout the day, throughout the courthouses in this state.
And I would encourage you to support a bill that would allow Judicial to place victim's advocates in every [inaudible] court, every GA court, and in the juvenile courts. Thank you for this opportunity.
REP. LAWLOR: Thank you very much.
ATTY. KEVIN KANE: WE have offered written testimony with regard to other bills. There were two, though, that I'd like to comment on, specifically, verbally, here.
One is with regard to House Bill 5528, the Freedom of Information Bill. I agree with Commissioner Lantz's interpretation of that bill, that it would take away a protection which we presently have.
By we, I mean the prosecutors and the inspectors in the Division of Criminal Justice who are involved in situations which expose us to danger, not infrequently.
And, presently, we can request the town officials not to give out our home addresses, which is important to the safety of the members of the division.
This bill would take away that and would enable people who know what town we live in to go to that town and ask where we live, and, in some cases, even get the interior floor plans to our houses.
This is not a good situation for the safety of the people who are doing the jobs that the public expects us to do, and I would ask that this bill not pass for those reasons.
The other bill that I would like to talk about is House Bill 5752. That is a bill that would require, it deals with the investigation into the use of deadly force by police officers that result in death.
This would require the Chief State's Attorney to, when there is use of deadly force by a police officer that results in death, this bill would require the Chief Stat's Attorney to appoint a State's Attorney from another judicial district or a special prosecutor to conduct that investigation.
In 1999, there was a, there had been at least two, and, as I recall, maybe more, but two stand out in my mind, incidents in which deadly force was used by police officers that became quite controversial.
The Governor's Law Enforcement Commission studied this issue at great length for a long time during 1999, as I recall it, from the spring right through the fall of that.
That Governor's Law Enforcement Commission was made up of a wide variety of officials, who divided into working groups or created working groups, which those working groups included people who were not on the Commission, but it included a wide array of people who had some expertise in this area, and studied this hard, and at length, came together with a report.
That report, and one of the things they started is whether or not that should be required, that the State's Attorney from a different judicial district should be appointed to do the investigation.
The Commission specifically declined to make that recommendation. Right now the Chief Stat's Attorney has the authority, under the statute, it's permissive for the Chief State's Attorney to do it when the situation justifies that.
That has been done in various times. When I was in New London, I was appointed to investigate a police shooting that occurred out of the judicial district in London. Other State's Attorneys have been appointed to conduct investigations into police shootings that occurred in other judicial districts.
It is done when it's appropriate, when we recognize that there will be either the appearance of a conflict of interest or an actual conflict. And that's done. And I would ask that the Legislature allow that practice to continue.
There are times when the person who is best able to conduct that investigation is the person in the judicial district where the incident occurred.
Oftentimes, that State's Attorney has the best contacts, the closest contacts with community groups.
Often that State's Attorney has the best sources of information and can conduct an investigation and get to the truth of the matter, which is our ultimate objective, to find out what is the truth?
The State's Attorney normally is in the best position to conduct that investigation and get to the truth. There are times when it's inappropriate, as I said, when there's a conflict of interest or the appearance of a conflict of interest.
The law now permits the selection of a State's Attorney from other judicial districts. That's been done in several cases, and it would continue to be done.
One of the situations where we have a police shooting, often, it's important for the State's Attorney to get involved immediately and be involved.
One of the things I should say is we've all agreed that that Commission, the Governor's Law Enforcement Council, I mean, made certain recommendations. Right after that report, we adopted those recommendations and followed them.
Investigations, typically, are conducted, not typically, but if a police shooting were to occur in Hartford, for instance, today, the agency that would do the investigation would be the Eastern District of the Connecticut State Police Major Crime Squad, as is happening at this moment in the case that just occurred this morning.
The State's Attorney for the Judicial District of Hartford, Gail Hardy, would have been here now testifying with me, except she is involved in that.
I received a call from her this morning saying she couldn't come because of that incident. She called me almost as soon as she was notified.
We discussed the facts, made a decision that it's appropriate for her, as the State's Attorney for the Judicial District of Hartford, to handle that investigation, keep me apprised, which she will, and, if it becomes important that another State's Attorney be selected, we'll address that.
This is a matter that right now we have the discretion to do what's appropriate to respond to it. This statute would prohibit a State's Attorney from the judicial district from investigating any deadly force, conducting any deadly force investigation.
I think that would be a mistake. There are times [inaudible] to do that would inhibit the ability to quickly gather the truth. There are other times, when, as I said, a conflict of interest or the appearance of such a conflict is important to be able to have another State's Attorney to do that.
The law, as it stands now, permits us to do that. And I would ask that the law be allowed to remain as it now is. Thank you.
REP. LAWLOR: Thanks. And just [inaudible] you point out, we had one of these shootings just a couple of blocks from here this morning.
ATTY. KEVIN KANE: Yes.
REP. LAWLOR: And I was trying to think how frequently this actually happens in our state. And if I had to guess, I'd say five, ten times a year, statewide. Does that sound about right, a fatal shooting by a police officer?
ATTY. KEVIN KANE: I would guess about five. There are some times when we seem to have more often than some less frequently. But I would guess five to ten is it.
REP. LAWLOR: We've had two or three in the last month or so, if I recall correctly, there was.
ATTY. KEVIN KANE: Yes.
REP. LAWLOR: Well, with that in mind, I know you have not been Chief State's Attorney for that long. What's it been, a year-and-a-half or so at this point?
ATTY. KEVIN KANE: About a-year-and-a-half.
REP. LAWLOR: And, of that time, could you estimate the percentage of times that you have assigned such an investigation to a State's Attorney, other than the local State's Attorney? Has it ever happened?
ATTY. KEVIN KANE: Of the ones that have occurred, and that have occurred now and I, off the top of my head, I can only recall three that have occurred since I became Chief State's Attorney.
There may have been more. I didn't keep notes or bring my notes with me. I haven't assigned anybody outside the judicial district yet. There have been cases in which other State's Attorneys, as I said, prior to my tenure, being assigned.
And I continue that policy in those cases that existed where I was presented with those situations, we would do the same thing.
REP. LAWLOR: And, if I had to guess, my sense s that the majority of those shootings, on their face, seemed pretty straightforward. There's not even a suggestion of a problem, you know.
A bank robbery going down, and the police are having a shootout with the suspected robber is one thing, versus some of the other more controversial shootings where the person killed turned out not to be armed.
I mean, yes. They come in different categories. So is what you're saying that the straightforward types of cases, it would be unnecessarily complicated to assign them to a different prosecutor? You're talking about conflicts of interest. I'm just trying to get at what you mean by that.
ATTY. KEVIN KANE: The straightforward cases certainly make it easier to keep, I mean, those are the easy cases.
When I say there's a conflict of interest, if a State's Attorney has been, had a working relationship with the police officers who were involved in the shooting, either as witnesses or shooters, if it had, for example, had been people who were witnesses or involved with the State's Attorney in other work, so that that State's Attorney had a working relationship with those police officers, to make it such that the State's Attorney may feel himself or herself, I think it's more appropriate to have another attorney deal with this.
Or if the State's Attorney were so close, let's say it was a particular squad of detectives or a particular narcotics squad that the State's Attorney of his office has worked very closely with that was involved in a shooting.
Well, that's the most obvious type of cases where you'd stop and think, well, maybe another State's Attorney ought to more appropriately handle this.
Absent the relationship, absent a particular relationship between the individuals involved in the shooting or the actual taskforce or group or division that was involved, there wouldn't appear to be that appearance of a conflict of interest, and that would be something that would be less likely to want to assign to another State's Attorney.
If it was a particularly controversial shooting, if it was a shooting that happened where, as we've had some of those, the person was unarmed, it looked like it might be a close call, it was a particularly controversial thing where community groups are very concerned one way or another about the case, and it might lend, it might be wiser to have, to avoid the appearance of a conflict, to have another State's Attorney, we would do that, assign another State's Attorney in a case like that.
REP. LAWLOR: Now correct me if I'm wrong. The current state law requires there to be a separate investigation of every police shooting which results in the death of somebody. Is that correct? That's the correct law?
ATTY. KEVIN KANE: Yes. It does.
REP. LAWLOR: And so we're only talking not whether there should be an investigation but who should do it? That's all we're talking about now right?
ATTY. KEVIN KANE: Yes. That's correct.
REP. LAWLOR: And it's my understanding that there's a, I don't know whether it's a federal statute or just a rule of procedure in the Justice Department, but I believe that it's the case that every single fatal police shooting is also investigated by the Division of Civil Rights, I think, within the Department of Justice.
I think there's a, I recall this because there was a famous case involving an East Haven police officer shooting somebody.
And I remember back then, it turns out there's a parallel and completely separate justice department investigation of each and every. They at least open a file and begin the process. Is that correct?
ATTY. KEVIN KANE: Correct. And they do more than just open a file. They have jurisdiction to investigate. They do investigate some thoroughly. That is correct. And they do it independently of the investigation conducted by the Division of Criminal Justice.
REP. LAWLOR: So or every police shooting, there are two investigations, at a minimum, one by either the local prosecutor or someone designated by yourself, and then a separate one done by the Justice Department, both looking at the same general issues about whether or not it was justified.
And then, beyond that, whether there's any violation of civil rights involved? Is that the case?
ATTY. KEVIN KANE: I'm not sure the federal government investigates every police shooting. I do know that they've investigated every one I've been involved with.
I do know that they've investigated. I do know that they investigate when they get a complaint. I'm not too sure that they investigate every single police shooting. I think they do.
REP. LAWLOR: Every fatal shooting, every fatal shooting.
ATTY. KEVIN KANE: Yes. Every shooting result, every case where there's a death resulting from the use of deadly force by a police officer. I believe they do investigate every one. I'm not absolutely positive.
I know they investigate almost anyone they can. I can't think of one that they haven't, and I can think of a lot of that they have.
REP. LAWLOR: Well, thank you very much. Are there other questions? Representative Gonzalez.
REP. GONZALEZ: Good afternoon. I do have a question. The investigators that we have, that you have, if they will investigate these cases, are they, both of them, they are police retirees, they are, right, the investigator that you have in your office?
ATTY. KEVIN KANE: The investigator [inaudible] the State's Attorneys, and that the Division of Criminal Justice has are inspectors, all of whom have been previous police officers or federal officers.
REP. GONZALEZ: Right. As a member of the Black and Latino Caucus, we got involved a couple of years ago in a couple of cases. And the information that I got from the Chief State's Attorney was that all the investigators that they have in that office, they were retired.
They were police officers. They were retired police officers. So this bill came because families there, they have, they were having a victim.
This bill came because they were involved, knowing that those investigators, one way or another, that were involved with these police officers, they used to work with them, and that's why it was a problem.
I also remember that only one case was transferred out of Hartford because the Black and Latino Caucus they got involved, and they sent a letter requesting another investigator because they were having problems [Gap in testimony. Changing from Tape 1B to Tape 2A.]
--a shooting if somebody, let's say that a shooting happened here in Hartford. You are going to use your investigators. And those investigators, that if I find out you have 12, 10 or 12, they are retirees. They were police officers.
So that's the problem that we're having here, that these families, they think that this investigation, they were not properly, and also they were stalling these cases for years, and nothing was happening with these cases.
That's why the Black Latino Caucus got involved on these cases. And we were very successful because they only, they transferred or they transferred one of the cases to Waterbury. So this is the problem that we're having with this.
ATTY. KEVIN KANE: That's what I'm saying. There are situations where cases should be transferred. But don't. There's something important here with regard to who actually conducts the investigation.
I believe you're talking about the people who are employed as inspectors in the Hartford State's Attorney's office.
REP. GONZALEZ: Yes.
ATTY. KEVIN KANE: The actual investigation of those cases was conducted by the State Police. I believe, in both cases, it was the Eastern District Major Crime Squad of the State Police who conducted the investigation.
The inspectors from the office may or may not, to one degree or another, have assisted or worked with the Eastern District Major Crime Squad.
But the predominant investigative agency that assists the State's Attorney would be the State Police Major Crime Squads that would process the scene, gather physical evidence, photograph and document the scene, and go out and interview witnesses.
That type of the, that part of the investigation would be and is carried out by the State Police Major Crime Squad, not by the investigators you're referring to.
REP. GONZALEZ: Okay. Thank you.
REP. LAWLOR: Other questions? If not, thank you very much.
ATTY. KEVIN KANE: Thank you.
ATTY. PATRICIA FROEHLICH: Thank you.
REP. LAWLOR: Next is Kathy Zeiner. She'll be followed by Nick Carbone, Joe Camposeo, and then, Kevin, you said Gail Hardy's not here, right?
ATTY. KEVIN KANE: Gail Hardy's not here.
REP. LAWLOR: Okay. So we'll skip over here, and then Gina McCarthy will be next, after Ms. Zeiner, Mr. Carbone, and Mr. Camposeo.
KATHY ZEINER: Good afternoon, Representative Lawlor and Members of the Judiciary Committee. My name is Kathy Zeiner, and I'm here to speak in favor of House Bill 5722, AN ACT CONCERNING PROTECTIVE ORDERS AND COURT SERVICES FOR CRIME VICTIMS.
I am the Executive Director of the Women's Center of Southeastern Connecticut. We provide domestic violence services to more than 5,500 victims per year in New London County, including 2,000 in the New London court and 1,500 in the Norwich court.
As you may know, the purpose of domestic violence docket courts is to increase offender accountability while enhancing victim's safety through the aggressive investigation and prosecution of domestic violence cases.
This is accomplished through a specialized team that includes a judge, prosecutor, investigator and family violence victim advocate, among others, who understand the complex issues of domestic violence and effective options for prevention, sanctions and treatment of offenders.
Docket courts benefit the community because cases are heard sooner, there's more consistent prosecution of these cases, as offenders are closely monitored.
Repeat offenders are prevented from judge or prosecutor shopping, and victims feel safer and more confident to come forward.
I want to thank you, the Judicial Branch, and the Governor, for recognizing the effectiveness of this approach in Bridgeport, Hartford, New Haven, Stamford, and Waterbury, and for responding to the critical need for these courts in New London, New Britain, and Norwalk.
Unfortunately, in the eleventh hour of budget negotiations last year, the Legislature pulled funding for a victim advocate in these three new courts.
Without the services of a victim advocate, the docket courts cannot possibly accomplish their objective of enhancing victim's safety.
The victim advocate safety plans with victims provides information about court processes and court dates, accompanies victims to trials and hearings, represents the victim's wishes at meetings of the docket team, assists with protective orders and restraining orders, and much more from the time of arraignment throughout the court process.
We've tried our best this past year to provide victim advocacy in the docket courts without the state funding, but we've run up against obstacles.
The federal sources that fund our regular family violence victim advocates restrict the amount of work that advocates can provide to docket courts.
Other potential funders have told us that they believe it's the responsibility of the state government to fund these positions, and they've not approved our grant requests.
Because our agency fund-raising program has not even kept pace with the underfunded portions of our other state and federal contracts, it will be very difficult, if not impossible, for us to continue to provide any victim advocacy services to the docket courts, without the funding from the state for the position.
You've invested a lot of resources in domestic violence docket courts statewide, and they are making a difference. But without the victim advocates, victims are left out of the process, their rights are neglect, and their safety is compromised.
I'm confident that this was never your or the Governor's intention during the last Legislative Session. This is your opportunity to remedy that situation.
And I respectfully request that you recommend and advocate for funding for victim advocates in the three new docket courts. Thank you.
REP. LAWLOR: Are there any questions? If not, thanks very much. Next is Nick Carbone, and Joe Camposeo will be next.
NICK CARBONE: Good afternoon, Chairman and Members of the Judiciary Committee. I am a member of the Hartford Firearm Discharge Board of Inquiry, which, under a federal consent decree, has the responsibility to work with the police department to investigate all shootings by Hartford police officers.
And I'm speaking in favor of Raised House Bill 5752. I've been a member of said board since 2000. And past practices in the office of the Hartford State's Attorney's office is that we used to do concurrent investigations.
And many times, the Firearm Discharge Board of Inquiry completed it's investigation and made recommendations to the Chief and to the State's Attorney's office.
Under the appointment of Chief Harnett, we found out that the State's Attorney's office had decided to stop having the dual investigations.
And now, when the use of deadly force is used, the department has refused, pursuant to the orders of the State's Attorney's office, to turn any information filed over to the Firearm Discharge Board of Inquiry.
The citizens of the city, under the consent decree, have filed four contempt of court motions against the police department, coming out of the use of deadly force.
And Special Master Richard Bieder, of Koskoff and Bieder, has heard the case on the contempt of court of 40 days of trial, and he should be issuing a ruling on that.
What we believe is taking place, that, and the Hartford prosecutor's office, the inspector's office, there are seven out of ten of the inspectors that are former Hartford police officers.
And we believe there is a potential conflict of interest between the senior officers in the department and some of those inspectors. So that gives rise to a bill.
In one of the conflicts, there was a taskforce put together with the prosecutors' office, where they picked Hartford officers to be involved in that taskforce, drugs and guns.
It ended up in a deadly shooting, and, therefore, the prosecutor's office that was going to investigate that deadly shooting was involved in picking the officers who were on that taskforce.
That's the case that went up to the Waterbury State's Attorney, and he brought a grand jury. And I believe that the power of the grand jury should be there.
And there should be a special prosecutor's office that conducts those investigations to ensure the public that it's complete, it's thorough, it's fair, and without dealing with all the potential conflicts that may be involved in it.
And so that's why I believe the bill is important, and we have to resolve the public perception of conflicts of interest that come out of these shootings. Thank you.
REP. LAWLOR: Thanks, Nick. And there's a new State's Attorney in Hartford. Is she continuing the same policy that you were just concerned about from the predecessor?
NICK CARBONE: Yeah. The last shooting on I-84, not the shootings today, but on I-84, where the person fled, we were told that the State's Attorney is investigating that. No files will be turned over to us, and they are, so the answer is still being continued.
REP. LAWLOR: Okay. And that's, as far as you know, that's a decision of the Hartford State's Attorney?
NICK CARBONE: I don't know whose decision it is. I really believe it was the decision of a former chief of police, asking that the State's Attorney take that position.
There's nothing I can find in the statute that says you can't have a concurrent investigation, particularly when a department is under a federal order, and the investigative procedure, the Firearm Discharge Board and the Special Master have all been approved by Senior Federal Judge Ellen Burns.
So this department is under an order because there has been, historically, some problems there.
REP. LAWLOR: And if I understood Chief State's Attorney Kane correctly a moment ago, I thought he said that these shootings, including the one today, are immediately investigated by the State Police Major Crime Taskforce, not by the Hartford Police Department. So how does that enter?
NICK CARBONE: The federal law that requires the Hartford Police Department, with the Firearm Discharge Board of Inquiry, to conduct an investigation of the possible violation of the department's rules and regulations, by a Firearm Discharge Board of Inquiry, which has three civilian members, appointed by the community.
I happen to be one of those members. So I'm telling you that we are not investigating any shootings, and that started with the appointment of Chief Harnett.
Prior to that, we were doing concurrent investigations when there was a deadly shooting. And we would file our report, and we would submit our report to the State's Attorney's office.
Most of the time, we were conducting our investigation quicker than the State's Attorney's office was doing.
REP. LAWLOR: Yeah. What I'm wondering is, and you may not know the answer to this question, but it sounds like, at some point, for some reason, the State Police were called in to investigate all these shootings, as opposed to the Hartford Police.
I don't know if that's a, I don't think that's a statewide rule, but, apparently, according to the Chief State's Attorney, it's the rule here in Hartford at the moment, and I'm wondering if that sort of changes everything?
NICK CARBONE: No. Because there's nothing in the statute which prohibits the department from conducting its own investigation. There's two parts to an investigation that the department does.
And the City of Hartford, our gun guidelines happen to be more restrictive than in the state statute, so we have a, and our officers are trained to those more restrictive gun guidelines.
We also have some very restrictive policy on the pursuit of fleeing vehicles. We also have, in most of our cruisers, cameras and audio vision, so we know exactly what's taken place.
So the department is under a federal order, and on the gun guidelines and on how it was to conduct its investigation. [inaudible] under Tennessee v Gardner, the chief will order that officer to make a statement.
If he makes that statement, that statement is protected, and it only can be used for administrative purposes, not for criminal charges.
So the Hartford Police Department can discharge the officer for violating a rule or regulation, but can't prosecute that officer over his statement, which he is compelled to do, under the orders of the chief.
The State Police is in here investigating the I-84. They have no statements from the officers involved. The State Police can't order the police officer to make a statement.
Our concerns, as citizens of Hartford, are twofold. If it's a wrong shooting, violated the training, that officer should not be on the street carrying deadly force, i.e., it should be terminated.
Second is, if he's done a shooting that's wrong, I don't want to act as a defense attorney. I want to make a finding that the shooting was wrong, compensate the family, and make sure that doesn't happen again.
So that we would then train the people coming through the academy and go back to train that the use of deadly force, how to use it properly in Hartford, and follow it.
We're a very dense city, so our gun guidelines are, again, much more restrictive than the state statutes. And that's adopted by the chief in the department.
REP. LAWLOR: And I'm just looking for the bill here. But is there a portion of the bill that deals with this particular problem? Because I thought it only deals with which State's Attorney's office does the actual investigation.
NICK CARBONE: Well, it the it deals with that the Chief State's Attorney should appoint someone to conduct it, other than the division. But my, if I could write the bill, I would write it slightly different.
I would also mandate that the department has the responsibility, the duty and an obligation to see that its rules were followed in procedure and should conduct a concurrent investigation, which the State Attorney, that's what we used to do for 20-some-odd years, until someone in the State's Attorney's office decided not to do that any more.
And that started with Chief Harnett, and I think it was in 2006. So from 1973 up until 2006, there were concurrent investigations. And, again, there's nothing I find in the statute that prohibits the concurrent investigation, which only leads me to believe someone is stonewalling.
REP. LAWLOR: Well, and did I, I don't know if asked you. Have you actually met with the new Chief, the new State's Attorney for Hartford yet? Because I know she has the authority, in effect, to make these things happen on her own, as State's Attorney. She's the chief law enforcement officer for the area.
NICK CARBONE: AS I understand it from Kevin Kane that the investigation is now done by major crime, I think this is a matter that Kevin Kane should resolve.
REP. LAWLOR: No, well, I don't think--
NICK CARBONE: The community's spoken to Kevin Kane about this prior to Gail Hardy being appointed.
REP. LAWLOR: No. I understand that. I just, I think it's the case that the actual State's Attorney has a lot more actual direct authority than the Chief State's Attorney does, which is a quirk of our laws.
I mean, it's the State's Attorneys who really have the power. The Chief State's Attorney is sort of a general coordination, but doesn't have any direct authority in individual locations.
And since the concerns you're raising aren't actually even addressed by this bill, they're about the procedures of the Hartford Police Department, I do know that the State's Attorney, the local State's Attorney, has the authority to, in effect, order local police chiefs to do the things you're saying.
So my suggestion is to meet with the State's Attorney for Hartford, and ask her what her position is on this, and see if she is willing to order the police chief to do it differently, if, in fact, the police chief is the problem here.
So, I just, I'm not sure. But I do know the local State's Attorney has the real authority when it comes to law enforcement within that actual district.
NICK CARBONE: Well, I'll follow your suggestion. I'll make the call, and then I'll call you and give you a report, Mr. Chairman.
REP. LAWLOR: That would be great. Are there further questions? Representative Gonzalez.
REP. GONZALEZ: Good afternoon, Mr. Carbone.
NICK CARBONE: Good afternoon.
REP. GONZALEZ: In your opinion, you said that the citizen complaint process in Hartford is not working?
NICK CARBONE: The citizen complaint process?
REP. GONZALEZ: Uh-huh.
NICK CARBONE: It's not working. The federal court has just ruled against the department, and Judge [inaudible] Special Master Beater made a ruling. And it's in noncompliance with the federal order.
The city appealed Beater's ruling, and it went to Judge Burns, and she just issued a ruling on November 28 that the city was in noncompliance, the department was in contempt of court. And the city has now appealed that to the federal court, district court.
REP. GONZALEZ: And do you think that it's important to have a grand jury investigation in [inaudible] Connecticut?
NICK CARBONE: I think that there are a lot of problems taking place within the Hartford Police Department, and I think if a special State's Attorney would go in there with subpoena power and compel testimony, a lot of things would clear up.
And that's what John Connelly did in one shooting that he investigated. He brought it to the grand jury. And a lot of evidence came out that would not have been available through the traditional one police officer talking to another because they can't compel testimony.
REP. GONZALEZ: And if your citizen, you're a member of the citizen complaint process, right? What can you say about the power to use deadly force?
NICK CARBONE: Well, the power to use deadly force, the Governor or the mayor of a city or the President of the United States can't use deadly force.
It's a trust that we give to police officers. And they're the only ones that we allow to use deadly force to protect citizens or themselves. So that's a public trust, just like the power to arrest is a public trust.
So our goal, my personal goal, is to make sure we have the best people as police officers, and we train them well, and we realize that human life is sacred, and once it's taken, you can't restore it.
So I'd rather have a police officer err on letting someone escape, as long as he's not dangerous and going to kill someone, than shoot someone unnecessarily.
REP. GONZALEZ: And what about fire discharge?
NICK CARBONE: Again, our officers are trained to use cover and concealment, not to go walking down the middle of the street, to approach a person with safety in mind because the city's very dense.
And if you're on a residential street, there's people there, and they use .45 bullets. They're very powerful. So we want to minimize the shootings that take place, and we only want to use the power of deadly force when there's no other alternative. That's what our gun guidelines state.
REP. GONZALEZ: And, again, as a member of the citizen complaint process, how many cases have you been involved in, here in the City of Hartford?
NICK CARBONE: Shooting cases, I guess I would have reviewed 35 to 40.
REP. GONZALEZ: How many?
NICK CARBONE: Thirty-five to forty since 2000.
REP. GONZALEZ: And how long have you been a member?
NICK CARBONE: Since November 2000, we took office.
REP. GONZALEZ: 2000?
NICK CARBONE: 2000, 2-0-0-0.
REP. GONZALEZ: So you said 35 cases?
NICK CARBONE: Thirty-five to forty.
REP. GONZALEZ: Thirty-five to forty, so because I think that I heard that before that Kevin Kane said that there was maybe only four or five deadly cases here, you know, in the state.
NICK CARBONE: Well, the number of shootings is, on average, about eight to ten a year. The number of deadly shootings may be a smaller number, eight to ten.
REP. GONZALEZ: Eight to ten. Thank you, Mr. Carbone.
NICK CARBONE: Thank you.
REP. LAWLOR: Yeah. And just a factual matter. I just don't want people to misunderstand. You said, I think you said that only police officers are allowed to use deadly force in defense of themselves or others?
NICK CARBONE: Yeah.
REP. LAWLOR: Anybody can use deadly force. The same rules apply to everybody. The only difference is a police officer doesn't have the obligation to retreat if he or she can do so with complete safety, whereas citizens have that obligation.
But anybody, you or I or anybody else, can use deadly force in self-defense, if we believe, reasonably, that our life is in danger or someone else's life is in danger.
NICK CARBONE: Well, I had a case where a cop went in the house and shot a guy who was trying to defend himself. He's doing 20 years in jail. He was in his own apartment.
REP. LAWLOR: I'm only saying, the same law on use of deadly force applies to you, me and the police officers. The only difference is the duty to retreat. Anybody can use deadly force in self-defense.
NICK CARBONE: Again, Representative Lawlor, it didn't apply in that case. The man was in his house. The Hartford Police Department went in, shot him, saying that he had a weapon.
They didn't announce themselves. The wife was on the telephone calling 911 about a minute-and-a-half before the shooting because someone was prowling in the backyard, and the guy's doing 20 years.
REP. LAWLOR: But the law is the same. I'm only saying people make mistakes, right, in applying the law, but you had said that the law only gives police officers the authority to use deadly force in defense of themselves or others. That's not the case. Anybody can use deadly force [inaudible].
NICK CARBONE: Well, I have the right to go home and get a gun and use deadly force?
REP. LAWLOR: If you reasonably believe your life is in danger or someone else's life is in danger. The only difference is, if you're a police officer, you don't have a duty to retreat, if you can do so with complete safety.
Whereas, you or I would have a duty to leave. Before we started killing people, we have a duty to get away, if we can, with complete safety.
NICK CARBONE: How do you get away from your own house?
REP. LAWLOR: You don't have a duty to retreat if you're in your own house. So whether a private citizen does not have a duty, so, in your own house, you're exactly the same as a police officer, put it that way.
But you have to reasonably believe, if you use the, I hate to teach you the, I hate to go about like I'm teaching a lesson, but I'm just saying you said that there's different rules for police officers. There's not. It's the same.
The only difference is the duty to retreat. And that doesn't apply if you're in your own house. You don't have a duty to retreat, workplace or house, so.
NICK CARBONE: Well, thank you.
REP. LAWLOR: But the law is identical, other than that. Are there further questions? If not, thanks very much. Next is Joe Camposeo.
JOE CAMPOSEO: Good afternoon, Senator McDonald, Representative Lawlor, and Members of the Committee. My name is Joe Composeo, or, if you got an A in Italian, it's Composeo, and that's perfectly okay.
REP. LAWLOR: Any [inaudible].
JOE CAMPOSEO: I'm the Town Clerk of Manchester, and also the President of the Connecticut Town Clerk's Association. I'm here to testify on behalf of House Bill 5535, AN ACT ADOPTING THE UNIFORM REAL PROPERTY ELECTRONIC ACT.
And I also might footnote that our Legislative Chair, generally, comes to these sessions and does testify. But, regretfully, she could not make it today, so in our organization, delegation tends to get kicked up the ladder rather than down the ladder.
We also, I might add, are prepared to and will be submitted written testimony on behalf of Raised House Bill 5528, AN ACT CONCERNING THE FREEDOM OF INFORMATION ACT. And we will be supporting that particular act.
With respect to House Bill 5535, essentially, this is an updating of technology for the State of Connecticut, with respect to how land recordings are processed.
Some years ago, the federal government established a means to transact business electronically. But what was neglected was any link to the process of recording public records, particularly land records, in the electronic form.
In the year 2004, the Uniform Real Property Recording Act was passed by federal authorities. At this point in time, approximately two dozen states have adopted your [inaudible], and Connecticut is among 12 considering it.
Essentially, what it does it permits clerks, be it county clerks in other states or, in the case of Connecticut, Rhode Island, or Vermont, town clerks, the ability to have the access to transact land recording business electronically in a paperless mode.
It is not a mandate. It simply is a filling in of the law as it exists and permits us to be at the readiness for it.
We're in support of it because the detail of the bill is rather unique, in a sense that it permits us to reach out and work with the public records administrator as well as the State Librarian, and the many stakeholders that we have in this process.
We think, for that reason, and the essence of our being able to create standards and to move this forward, puts us in a position to implement this bill in the most effective means as possible.
So we're excited about this, and, hopefully, it will be support and be passed. And that concludes my presentation. I'm prepared to answer any questions that you have.
REP. LAWLOR: Thanks very much, Joe. Senator McDonald.
SEN. MCDONALD: Thank you very much, Mr. Chairman. And thank you for your testimony. I mean, under this proposal, as I understand it, it shouldn't be mandatory for individual towns to use that, is that fair?
JOE CAMPOSEO: That is quite correct. All it does is it enables there to be a statutory acknowledgment of the process of electronic filing. So it is not, in any way, a mandate upon any municipality.
SEN. MCDONALD: And how many municipalities are you aware of, thus far, at least, that have expressed an interest in voluntarily adopting it?
JOE CAMPOSEO: Our association supports the concept, at large, in the majority. But in terms of actual numbers, we're still in the process of implementing these scannable recordings, as it is, which is, in essence, an electronic way of doing business, but it's not paperless.
What we have now is what is called a Level 2 means of recording, where hard copy is submitted. We scan it into a system, and it is electronically retrievable.
This process subscribes to creating a paperless means of transacting a business. To answer your question, currently, we have most of the clerks throughout the state, of the 169, do have an electronic accessible system in place.
At last count, maybe two dozen did not have. And, by nature of a law that was passed last year, all 169 towns, by January of 2009, have to have an electronic access so that customers and searchers can go in and literally see the indices of mortgage information and land information in each town.
SEN. MCDONALD: Well, and forgive my ignorance. It's been a long time since I've had to do a title search.
JOE CAMPOSEO: We've got a great training program [inaudible].
SEN. MCDONALD: Is it the goal to have all of the long-term goal, I guess, to have all of this information online and searchable so that you could do a title search from your desk at home, if you wanted?
JOE CAMPOSEO: I would think that that would be the noble goal. The reality of it is that it probably could not be implemented overnight, but we see it as a vast opportunity to really upgrade customer service.
In fact, in Manchester and some of the surrounding towns, we are currently looking at a model of shared service. In fact, some of you are familiar with the CROG grants that have been distributed, and some of the models have been supplemented.
We're looking to have a model that tests the consortium of connecting several towns together. In our opinion, if you were to connect the whole state, it would have significant enhancement to customer service.
And, really, it would be the bluest of skies. I'm not optimistic that that's going to happen overnight though because some clerks simply do not have the technical assets to move forward.
SEN. MCDONALD: And maybe I misunderstood you, but is it ultimately the goal to allow for the recording to take place electronically, or would somebody still have to go down and file it and write out their check to the Town of Manchester?
JOE CAMPOSEO: I would, in looking at the other states and some of the county recorders I spoke to, they have a dual capacity. The recording act, electronically, the paperless act of recording, is an option.
Meaning that if you were doing a closing in Stamford and recording in Manchester, at the bank or at the closing agency in Stamford, it potentially could be done electronically, or you would have the option of coming up to Manchester and literally having someone hand off the paper.
So I would envision it, Senator McDonald, as being a dual system and not the only way to record a document or file a document for record.
SEN. MCDONALD: And in those other states that have adopted it, what are the safeguards regarding to authenticity of the documents that are being filed electronically?
JOE CAMPOSEO: There are various means of encryption and authenticating the sender of the information.
And one of the processes I know is, for example, if you were to submit, from Stamford to Manchester, a recording, we would then return it to you so that we would have some form of identification, at the outset, identifying who you are.
In other words, it would be a registry of your name and others who were filers. And by that encrypted number or PIN number, as one might call it, we would send a signal or a message back to you to ensure that, yes, that is indeed you that is submitting this document.
So there are protections. I'm not the technician able to go terribly deep on that, but my understanding is that there are numerous safeguards and firewalls with respect to the workflow.
SEN. MCDONALD: Thank you very much. Are there any other questions? If not, thank you very much for your time.
JOE CAMPOSEO: Thank you.
SEN. MCDONALD: The next speaker, I believe is Gina McCarthy, followed by Gina Carucci, and Janet Levy. Good afternoon, Commissioner.
COMM. GINA MCCARTHY: Good afternoon, Mr. Chairman. How are you?
SEN. MCDONALD: I'm well. How are you?
COMM. GINA MCCARTHY: Thank you for the opportunity. I'll try to be as brief as I can. Thank you to all the Members for allowing me to be here today. I appreciate that very much.
I'd like to talk about two bills in particular. The first one is Raised House Bill 5528, which is AN ACT CONCERNING THE FREEDOM OF INFORMATION ACT.
I would like to just throw my two cents in that we believe the intent of this bill is a very good one, and would like to encourage a rework of the language so that it clearly matches the intent.
As many of you know, we have been filing and pushing for a bill for many years to protect the addresses of our environmental conservations officers.
They are the only police force in the state who does not have the protection of the exemption under FOIA for their home addresses. We consider this to be a serious problem.
Senate Bill 615 may end up coming before the board to address that issue in particular, but should the intent of this bill pass, that bill would no longer be necessary. So we'd like to call your attention to that.
But most importantly, I'm here to speak on behalf of the Governor's bill, House Bill 5032, which is AN ACT CONCERNING THE OPERATION OF A VESSEL WHILE UNDER THE INFLUENCE OF INTOXICATING LIQUORS OR DRUGS, which we believe to be an enormously important bill that would like your support to move forward.
The department supports this bill because we believe that there's a need to strengthen the criminal code for people who operate a boat or a vessel under the influence of alcohol or drugs, particularly, when their actions result in a loss of life.
DEP works very hard to educate the boating public on safe boating practices. In fact, we have an award-winning environmental education program in this regard.
But we don't consider this to be a luxury of any kind. We consider it to be a necessity because there are approximately 110,000 boats in the State of Connecticut; 278,000 boaters currently hold a Connecticut safe-boating certificate.
Boats safe and sober is a major emphasis of our boating safety education program in Connecticut. It's discussed extensively in our mandatory safe-boating classes.
But despite all of these education efforts, BUI, boating under the influence, continues to be a serious problem. Over the past decade, 8% of all boating accidents reported in Connecticut waters have involved alcohol or drug abuse.
Alcohol was the contributing factor in 31% of all fatal boating accidents over the last ten years. Now let me stress that. One out of three fatalities in a boat took place as a direct result of boating under the influence.
BUI is especially a problem in our rivers and our lakes, with 50% of Connecticut fatalities occurring in our rivers and 35% in our lakes over the last five years.
So we strongly support the Governor's effort to strengthen penalties for BUI, in particular, where that leads to accidental deaths.
Currently, the maximum penalty for BUI, which is reckless operation in the first degree while under the influence of intoxicating liquors or drugs, is between $2,500 and $5,000 penalty, with less than two years of incarceration.
And that's for a penalty that can result in as little as a $2,000 scratch in another boat or a death as a direct result of those actions. That's the only choices that the courts currently have.
The Governor's bill would make a clear distinction for the more serious violation where the BUI would result in a death of another individual.
And that raises the financial penalty up to $10,000 in fines, and/or jail time of not less that one year but not more than ten years. This actually raises a BUI where the result is an accidental death up to a Class C felony.
It is exactly paralleling what we do with motor vehicle penalties, and we think it is the right thing to do. Now, clearly, DEP is the last agency that would want to discourage boating in this state.
It is part of our mission to promote the state's natural resources and to create an opportunity for recreation in those resources.
But it's our opinion that even though we are extensively moving towards environmental education, and we do a good job of that, there is an absolute need to send a clear signal through the courts in terms of penalty and imprisonment that BUI will not be tolerated.
And when it results in the death of individuals, as it did very sadly just last year, we need to send a strong signal. We need to do more than educate. We need to tell people that that action will not be tolerated.
The Governor's bill, we believe, does that. It does it consistently, with the way in which motor vehicles are managed, and we would encourage the bill to be moved forward. Thank you very much for the opportunity. I'm certainly open to any questions.
SEN. MCDONALD: Thank you, Commissioner, just a couple of questions. And I don't know, did you have a hand in drafting the language here?
COMM. GINA MCCARTHY: No. I did not.
SEN. MCDONALD: Okay. And so maybe I can, I'll find out who did. But I'm trying to find out, in Line 4 of the bill it says that somebody would be guilty of manslaughter in the second degree with a vessel if they were operating it under the influence of intoxicating liquor or any drug.
And I'm trying to figure out if you are contemplating or advocating for any drug or illegal drugs or, I mean, what happens in the situation where somebody actually may have a prescription, a legal prescription for a drug, but may suffer some kind of adverse reaction to that drug while operating a boat, and causes the death of somebody?
This would be a Class C felony. It doesn't distinguish between any types of drugs involved. I'm just trying to get from you whether that was the intention.
COMM. GINA MCCARTHY: Mr. Chairman, I believe that the intent was to do exactly the same thing as the process on the motor vehicle side. So I will look at the language on both of those, and we'll certainly send you a clarification to make sure that it's the same language as [inaudible].
SEN. MCDONALD: And it may be. I haven't had a chance to cross. Right. I haven't had a chance to cross-reference it either.
Just out of curiosity, I've always found this interesting when, under the statement of purpose, it says that the purpose of this bill is to implement the Governor's budget recommendations. What are the budgetary components of this proposal?
COMM. GINA MCCARTHY: I'm confused about that as well. I will get back to you.
SEN. MCDONALD: Well, thank you. Are there other questions? Representative O'Neill.
REP. O'NEILL: Is it possible that the additional fines you're going to collect would be able to help balance the budget? That's a possible. And, on the other hand, the more people we incarcerate, the bigger the budget gets.
COMM. GINA MCCARTHY: I'm quite sure that the Governor's intent of this bill is to send a clear signal to people who are operating under the influence of alcohol and drugs, that they're operating a motor vehicle on that.
That motor vehicle is just as dangerous, a boat is just as dangerous as any other motorized vehicle, and it needs to be operated safely, and people need to be of sound mind when they're doing that.
And I'm sure she was affected by the instances in which individuals have died, and that, in simple matter, the penalties now afforded for that type of activity is just the same as if you severely scratched another boat.
And we think it deserves to be called out, and the Governor is clearly attempting to do that in this bill.
SEN. MCDONALD: Anything further from Members of the Committee? If not, thank you very much, Commissioner.
COMM. GINA MCCARTHY: Thank you so much.
SEN. MCDONALD: Next is Gina Carucci, followed by Janet Levy. Is Ms. Levy here?
DR. GINA CARUCCI: Good afternoon, Senator McDonald, Representative Lawlor, and Members of the Committee. My name is Gina Carucci, and I've been a practicing doctor of chiropractic in the greater Hartford area for over 13 years.
I sit before you as a representative of the Connecticut Chiropractic Association, for which I serve as Legislative Committee Chairperson and First Vice President.
I'm offering testimony in regard to Senate Bill 483, AN ACT PROMOTING PATIENT SAFETY AND ACCESS TO PROVIDER INFORMATION BY EXTENDING THE STATE PHYSICIAN PROFILE TO CERTAIN OTHER HEALTHCARE PROVIDERS.
This piece of legislation will extend the physician profile that is accessible to the public on the Department of Public Health's website to other healthcare providers who are required by statute to care malpractice insurance.
This year, just as last year, the Connecticut Chiropractic Association supports this bill because it treats all professions in a similar category equally. It is fair and reasonable.
Since the basis for including other professions in the profile is related to malpractice insurance, let me say that the chiropractic profession welcomes any scrutiny of our record in this regard.
As you know, the best indicator of the safety of a health profession is directly related to the malpractice insurance that its members pay.
The average premium for a full-coverage policy for a Connecticut chiropractor, that is $1 million in coverage for a single claim and $3 million for all claims in the policy, is approximately $3,000 per year.
That's correct. I said $3,000 a year. I would like to recommend two small amendments to the bill. The draft permits physicians to list their particular certifications and faculty appointments in the profile, but does not provide a similar opportunity for the other professions who will be added.
We would also ask that the providers included have the opportunity to respond to both of these elements of the profile, and I will include language to do so.
Overall, Senate Bill 483 will provide more transparency in information to healthcare consumers and the public. We believe in this concept very strongly, and urge you to act favorably on this bill. Thank you.
SEN. MCDONALD: Thank you. Are there any questions? If not, thanks very much. Next is Janet Levy, followed by Merit Lajoie.
JANET LEVY: Good afternoon, Senator McDonald, Representative Lawlor, distinguished Members of the Judiciary Committee. My name is Janet Levy, and I'm here to support Senate Bill 483, which is AN ACT PROMOTING PATIENT SAFETY BY EXTENDING THE PHYSICIAN PROFILE.
Five years ago, I went to a chiropractor because I had gotten a stiff neck from sleeping on a new pillow. The chiropractor did what he told me was a completely safe adjustment on my neck.
The next day, I had gotten this terrible headache, got so dizzy and weak, I was unable to move and began vomiting. This lasted for about an hour, and then, all of a sudden, I got better, and it was just a weakness.
The next day, the chiropractor had to--
--mini stroke that precedes a major one. The chiropractor kept saying, no, you're fine. You just had a reaction to the adjustment. Many people have this kind of reaction to an adjustment.
You'll be fine in just a week. Trust me. Trust me. I'm a doctor. I know. I then asked him if I should go to a hospital, maybe get checked out.
He said, look. Why would you want to do that? I'm a doctor. If I thought there was something wrong, then I would tell you. You'll be fine. Needless to say, the next day, I was being rushed to the hospital.
I had a major stroke, emergency brain surgery.
After six weeks in the hospital, two years of expensive care and therapy, almost seven hours a day for two years, I was able to get my life back, as you see today.
But I found out what happened to me was not an isolated incident. There appeared to be tons of information, articles, and studies on the Internet directly relating the incidence of stroke to chiropractic manipulation.
I found out that there are also hundreds of young victims who are suffering as a direct result of this chiropractic adjustment. And I never knew that a chiropractic adjustment could ever cause a stroke or even have any risks at all.
If his educational information was available at the time, I could have found out that he was not a medical doctor, but rather he was a doctorate of chiropractic.
I would have gone to a hospital. I would have sought medical care, which probably would have saved my life, so that I wouldn't have to go through two years of literal hell.
Today, on the DPH's website, there is a category that says, you can get information that says all licensed physicians. Well, the State of Connecticut has given the chiropractors the right to call themselves licensed physicians in Connecticut.
They should be on this physician's profile. We need to find out their malpractice information, their education, know that they didn't have any training in hospitals.
You don't know this information, and it's very, a lot of people are getting hurt, and uninformed, needless, injured victims are popping up all the time, and it's, something has to be done. Thank you for giving me the opportunity to testify.
SEN. MCDONALD: Well, that you very much, Ms. Levy, for coming and testifying. It's, you know, we hear a lot of agency heads and association members, but it's extraordinarily important for us to have testimony from the people in the real world, I guess, who are involved in, frankly, advocating on important legislation. I very much appreciate you taking the time to come and testify today.
JANET LEVY: Thank you. You're welcome.
SEN. MCDONALD: Are there any questions? Thanks very much. Next is Merit Lajoie, followed by Dorothy Freedman. Good afternoon.
MERIT LAJOIE: Good afternoon, Senator McDonald. Distinguished Members of the Judiciary Committee, my name is Merit Lajoie, and the Complaint Officer for the Office of the Victim Advocate.
I'm here to speak in support of House Bill 5722. Sexual assault is one of the most underreported crimes. Many victims of sexual assault experience rape-related, post-traumatic stress disorder.
Symptoms may include re-experiencing the trauma, social withdrawal, avoidance behavior, and hyper vigilance. Victims of sexual assault whose offender is not known to them, typically feel frightened because they do not know the offender, his or her patterns, his or her record or anything about the offender.
On the other hand, the offender seemingly has the upper hand because the offender appears to know information about the victim, and in some cases, the victim may be threatened during the attack.
Regrettably, victims of stranger sexual assault are not eligible to obtain a protective order throughout the criminal justice process.
According to the 2005 National Crime Victimization Survey, 26% of all reported rapes were committed by a stranger, and 38% were committee by a friend or acquaintance, not necessarily defined as a domestic relationship.
In Connecticut, there were 702 forcible rapes reported in 2005. Using the national survey model, at least 183, and as many as 449 of those victims would not be eligible for a protective order in Connecticut.
Currently, Superior Court judges will issue an order of no contact at the time of arraignment in criminal cases of non-familial sexual assault.
No-contact orders are riddled with enforcement issues. Victims do not receive a copy of such order. Police departments are not notified, as they are with protective orders.
And unless a separate and distinct crime has been committed by the offender in the course of violating the no contact order, victims are often told by police there is nothing they can do.
In addition, no contact orders make stranger sexual assault victims more vulnerable if a violation occurs because often those orders are not entered into the registry of protective orders, consistently.
As a result, police have no way to verify the order. The victim must wait until the next scheduled court date to address the alleged violation. That could be a week or more. And the remedy, in some cases, is an admonishment by the court, and the offender is released again.
Section 1 of House Bill 5722 will allow Superior Court judges to issue a protective order in ceremonial cases to benefit victims of stranger sexual assaults.
Current law limits the issuance of protective orders to victims of domestic violence cases and victims of harassment and stalking.
Unlike a restraining order, which is issued by the family or civil court and does not require a rest, as proposed, issuance of a protective order will follow an arrest, and, therefore, there is a foundation of probable cause for the request.
All crime victims have a constitutional right to be reasonably protected throughout the criminal justice process. All victims of sexual assault deserve the same level of protection from the offender, whether known to them or not.
In 1996, Connecticut residents overwhelmingly supported the Victim's Rights Amendment to our State Constitution. Since then Connecticut has made significant strides to advance policy and improve the delivery of services to victims of crime, including the creation of the OVA in 1998.
However, there has been little advancement to fully staff the courts around the state with victim services advocates. There are 13 judicial districts, 20 GA courts, and 13 juvenile matter courts.
I have attached a list of victim services advocate assignments to my testimony. As you can see from the table, there is one JD in a vacancy in a JD, there are four vacancies in a GA, and there are ten vacancies in the juvenile courts.
Also, there are six advocates providing services to both victims in GA courts and JD courts. I applaud the efforts of this committee and the General Assembly for some of the improvements made in the criminal justice reform bill passed in special session.
Section 14 of the bill requires OVS, the Office of Victim's Services, Judicial Branch, to assign two victim advocates to provide fulltime assistance to victims who appear before the Board of Pardons and Paroles.
It is more than likely that two additional advocates will be reassigned from courts to perform this function.
Although this proposal may seem as a costly endeavor, in reality, once an advocate has been assigned in every court, the court process, I believe, will actually run more cost-effective and effective for judges, prosecutors and crime victims.
The Judicial Branch is responsible for funding and maintaining many areas of the criminal justice process, judicial marshals, court support services, court staff, offender programs, interpreter services, and I could go on.
The result is an overwhelming competition for funds to hire staff and implement programs in all of the Judicial Branch areas, including victim's service advocates.
Unless and until money is specifically earmarked for victim services advocates, the money will continue to be redirected and appropriated to other areas of need.
It has been almost 12 years since the passage of the Victim's Rights Amendment. Had money been allocated and earmarked specifically for victim services advocates each year for the last 12 years, nearly every court throughout the state would have an advocate.
Moneys are allocated and specifically earmarked for many areas, court support services, reentry and diversionary programs, community support services.
Now is the time to do the same for crime victims. Section 2 will require the Chief Court Administrator to ascertain the need for assistance by any court specific to crime victims, and to implement programs to ensure the fair and respectful treatment of crime victims, including the assignment of at least one advocate in each court around the state.
Crime victims, more often than not, have little or no experience or knowledge of the criminal justice process. They are thrust into a system that is confusing and frustrating during the most vulnerable and traumatic time in their life.
Without a victim services advocate to help navigate the criminal justice system, crime victims needlessly experience additional frustration, confusion, and revictimization.
The OBA has heard from many victims, prosecutors, and judges and others that advocates are a necessity in every court.
Prosecutors and judges rely heavily on advocates to maintain communication with victims and provide information regarding restitution, plea bargains, and sentencing.
Victims service advocates are also able to met and talk with crime victims more frequently than prosecutors. Crime victims that walk into a courthouse for the first time, without any previous experience, are intimidated, overwhelmed and scared.
The victim services advocate is the compass in the criminal justice process that can navigate a crime victim through the dark halls of justice. I strongly urge the committee to support House Bill 5722. Thank you for the opportunity to be here today.
SEN. MCDONALD: Thanks for your testimony. I just wanted to ask you one question with respect to Section 2 of the bill. I heard your testimony. I'm just trying to figure out if Lines 82 to 84 do what you testified they would do.
Frankly, I don't understand the language, and I'm pretty certain English is my first language.
It says that it would, you'd examine the state of the dockets of the courts of the Judicial Department to ascertain the need for assistance by any court specific to crime victims. What does that mean, court specific to crime victims?
MERIT LAJOIE: Well, this wasn't the original language we had submitted, I'll let you know that. So maybe LCO can answer your question better.
But what I will tell you is the language was originally taken out, the examine the state of the dockets of the courts originally came from judicial fiscal statutes, and kind of mirrored what they're required to do for the criminal dockets in their fiscal statutes, which is examine the dockets.
I'm assuming, in plain language, examine the dockets, decide what their needs are, and then fill those needs, more prosecutors, more clerks, I mean, whatever it might be.
SEN. MCDONALD: Okay. Thank you. Other questions? If not, thanks very much.
MERIT LAJOIE: Thank you.
SEN. MCDONALD: Next is Dorothy Freedman, followed by Alexandra Dufresne.
DOROTHY FREEDMAN: Good afternoon.
SEN. MCDONALD: Good afternoon.
DOROTHY NEVIS-FREEDMAN: My name is Dorothy Nevis-Freedman, and I'm on the Board of the Domestic Violence Crisis Center Norwalk/Stamford, which serves the surrounding towns.
I also was a family violence victim advocate in Bridgeport Court for 12 years, and now I have the luck to sit on the board, which gives me the other side of the picture.
I'm speaking in favor of House Bill 5722, and I certainly concur with what the last speaker said about the need for advocates in courts. The Special Docket Court was initiated in Norwalk in June of '06.
Shortly afterward, the number of cases that had been quickly nolled in the past began to decrease, and the services to victims increased.
What makes any docket court successful is the team approach, with the players remaining consistent and interacting with each other, which is what's happening in Norwalk.
We also see our goal of a community-wide, coordinated response coming to fruition, with the most recent promise from the Chief of Police in Norwalk to assign specific officers to domestic violence calls, an enormous step forward.
Our advocates experienced a vast increase in contact in advocacy with victims around safety since the beginning of the docket court, education regarding community resources, counseling, and shelter offered through our agencies.
With the docket court in place, the advocates follow each case with the victim and provide help along the way.
Increasingly, now, advocacy involves contact with victims concerning court dates, protective orders, violations of court orders, progress or not and batterer treatment programs, desired disposition of each case pre-impose conviction matters regarding their programs and probation.
The advocate's mission is to educate the victim as to the court procedures, create a safety plan with her for herself and her children, be her voice to the court and to assure her that her words are held in confidentiality.
I can't stress enough what the increase in advocate services has meant for the victims. Just as the last speaker said, she took the words right out of my mind. A courthouse is a very intimidating place.
For people who have never been in a courthouse, they don't understand the language, all the people that are around, all the comings and goings, and it's very confusing.
Victims most often are bewildered by what takes place in the courtroom, and often seem to have the look of what just happened? The advocate is one to whom she can turn for explanation, encouragement, reality check, and support, always keeping her safety in mind.
I know you understand the role of the advocate and can appreciate the increase of services that is benefiting the victims.
I'd like to end by saying that a successful docket court is not about jailing a batterer, but it's about finding the appropriate path, where possible, for the batterer to be a mentally healthy partner, father and member of society.
It is rare that a victim wants her partner and father of her children imprisoned. What she typically wants is to have an intact family, with peace and safety in the home.
We hope you will fund the position, the added position for victim advocate in the three newest docket courts so that our victim advocates can continue to meet the growing need for services to the victim. I thank you very much for this opportunity and for your interest in this matter.
SEN. MCDONALD: Well, thank you, Ms. Freedman. And, as I said to one of the previous speakers, it's incredibly for us to hear from individual such as yourself.
I guess it's also rare that we had an opportunity in the span of a few short weeks to see two Freedmans sitting in that seat, but it's a pleasure to have you here.
And please take the message back to your husband that courts can be an intimidating place at times, but--
DOROTHY NEVIS-FREEDMAN: I've let him know.
SEN. MCDONALD: --certainly, I very much appreciate you testifying, and, more importantly, your very active participation and advocacy on behalf of victims. So thank you very much. Are there other questions, any questions, I should say? If not, thank you very much.
DOROTHY NEVIS-FREEDMAN: Thank you for your kind words and support.
SEN. MCDONALD: Next is Alexandra Dufresne, followed by Judge Lawlor.
ALEXANDRA DUFRESNE: Good afternoon, Senator McDonald.
SEN. MCDONALD: Did I mispronounce your name?
ALEXANDRA DUFRESNE: It's Dufresne. That's fine. Senator McDonald, Representative Lawlor, and distinguished Members of the Committee, my name is Alexandra Dufresne.
I'm an attorney with Connecticut Voices for Children. I'm here in support of House Bill 5699, which is AN ACT IMPROVING OUTCOMES FOR CHILDREN UNDER THE CUSTODY, CARE, OR SUPERVISION OF THE COMMISSIONER OF CHILDREN AND FAMILIES.
We've submitted extensive written testimony detailing the arguments in support of this bill and the research that supports the design of this bill as well.
I've also submitted written testimony of Professor Courtney of the University of Washington in support of this bill. This bill would improve outcomes for children in the custody of DCF by increasing court review in abuse and neglect cases.
It would do so in two ways. The first way is that it would require court hearings every three months. It would also require court hearings when certain, very significant events occur in a child's life.
For example, there would be a court review mandated when the child was transferred from more than two non-emergency placements in a 6-month period, or when a child overstayed an emergency or temporary placement, such as a shelter, by more than 30 days.
There are some other examples, which are detailed in the statute. In terms of evidence that more frequent court reviews would improve outcomes for children, Professor Mark Courtney conducted a study for Dane County, Wisconsin.
And the question of the study that the study was to address was whether reducing the time between court hearings from six months to three months would improve outcomes, by keeping various players engaged in the process, by enabling judges to hold parties accountable.
The results of that study found that the children in the group that had the three-month rather than the six-month reviews were twice as likely to be free for adoption without suffering a corresponding drop in family reunification.
We also know from the experience of Allegheny County, Pennsylvania, which is cited as one of the most successful child welfare departments in the country, that they've experienced in the last ten years a dramatic improvement in their data.
For example, they have been able to reduce the average length of stay from 30 months to 13 months, and they've also decreased the number of kids placed in non-family settings.
This department has taken many innovative steps, but integral to its success has been the provision that they hold hearings every three months.
I want to be clear that the default in Connecticut currently is to have hearings once a year. The question is why would this proposal be needed in Connecticut?
We would expect DCF will argue that the internal mechanisms that currently exist are sufficient, and that this review would be duplicative of internal mechanisms.
It's true that DCF does have administrative reviews every six months. We have several concerns about these reviews, first that they're not a substitute for judicial review by any means.
According to the Juan F. court monitoring data, many of the children, in fact the majority of children, don't attend these reviews. Only a little over one-half of mothers attend, and less than 15% of the attorneys for the children attend these reviews.
These reviews are not sufficiently independent, and according to a December 2007 report by the Program Review and Investigations Committee, DCF's internal quality review mechanisms are deficient in many, many respects, including the basic idea that they would use data to influence decisions making.
We've detailed in our testimony lots of evidence from the Juan F. court monitoring, and also from the recent program review report that the current, and I'll be very brief, that the current system is not working.
Just by way of example, what children in the children currently suffer are separation from their siblings, multiple placements, overstays in temporary placements, many, many school transfers, inappropriate treatment plans, failure to have their needs met, and, most significantly, perhaps lacking permanency.
And just the one data point I want to give you on this is that recent data shows that 1,300 children in custody have a permanency plan of APPLA.
That basically means that the department has decided that in their case, they are no longer aiming for the goal of placing that child with a family. I'd be happy to take any questions on this proposal.
SEN. MCDONALD: Thank you very much. I just have one question. I'm looking at the hearing process in the bill, and I'm a little confused. What happens under this proposal if a hearing isn't held every 90 days?
ALEXANDRA DUFRESNE: Well, what happened is that DCF, under this bill, has the obligation to notify the court when these events happen. And if DCF were to fail to inform the court, then the attorney for the child would inform the court.
If both of those parties fail in their duties, the bill, as it is currently written, does not have a sort of a penalty assessed.
SEN. MCDONALD: So functionally, there's no consequence for not complying?
ALEXANDRA DUFRESNE: Right. We do believe that we've built in some redundancy in this system. First, DCF does have by this, a legal obligation to inform the court.
Then the attorney, in the absence of DCF fulfilling that obligation, can file a motion. And then the court, if either of those parties files a motion, the court must hold a hearing within, I believe it says seven calendar days.
Now you are correct. If both DCF and the attorney fall down on the job, then there would be no penalty.
SEN. MCDONALD: Any other questions? Thank you very much. Next is Judge Lawlor, followed by, I think we've got a string of judges. Judge Lawlor, followed by Judge Dennis. And is Judge Jones here?
UNIDENTIFIED SPEAKER: Judge Jones is still in Court, so [inaudible - microphone not on].
SEN. MCDONALD: Okay. So Judge Lawlor, and then Judge Dennis, followed by Harry Mazadoorian.
JUDGE JAMES LAWLOR: Thank you. Good afternoon, Commissioner, or Chairman Lawlor, Chairman McDonald. With me is Tom Gaffey, the legal counsel to the Probate Court Administrator's office.
I'm, and the Honorable Members of the Committee, I'd like to address Raised Senate Bill 508, having to do with Uniform Trust Code.
And speaking today, I'm speaking on my own behalf, but you should know that there's been considerable discussion between the President of the Probate Assembly and her designee, Paul Cannerum, who assisted us in developing a common position on this.
And, at least to that extent, I can't claim to be speaking for the Probate Assembly, but, at least to that extent, I'm setting forth their feelings and impressions on this.
This proposal presents difficulties for us in Connecticut with Section 5-C, in that it tends to minimize the involvement of the beneficiary and ascribes a higher degree of importance of power to the trustee.
From our point of view, and this is as judges of the probate judges in Connecticut, the primary element in resolving or facing a trust issue is that we have full and complete knowledge and understanding of the facts involved in a case.
This legislation tends to create a barrier to the full involvement of the beneficiary, and, therefore, to limit the knowledge that's available to us.
In doing so, it places the beneficiary's needs at a newer and lower level, while permitting a higher degree of efficiency and involvement on the part of the trustee and the trustee's attorney.
I think I understand the reason for the drafting, and I know that in cases involving trusts there is often a need to protect the trust from a beneficiary or protect the beneficiary from a trust, depending on how you read it.
The trouble is, from our point of view, it limits information that's available to us. It puts the court at a disadvantage.
Where settlers believe that they have a real need for that, I think they need to find another vehicle, and they shouldn't count on limiting the knowledge and participation of the probate court to accomplish it. So we oppose the legislation for those reasons. I'd be pleased to respond.
SEN. MCDONALD: Are there any questions? Let me just ask you. You indicated that there are still negotiations going on with respect to this?
JUDGE JAMES LAWLOR: The first we saw this, Senator, the first I saw of it was Friday, last week. Over the weekend, there were discussion between Vinnie Rousseau, Tom Gaffey, and Paul Cannerum.
We think that we have a firm position, but we haven't, I mean, we fully understand what our position is, and we've set it out. It's in our testimony, our written testimony. We haven't had any discussions with the proponents of the bill.
SEN. MCDONALD: Okay. Going forward, if you would do me the favor of talking to them, seeing if there's any common ground here, I'd appreciate it.
JUDGE JAMES LAWLOR: There have been discussions in other years. We just, we didn't get it until Friday, is our problem. I understand, and I'm willing to.
SEN. MCDONALD: Well, okay. But the issue isn't new. I mean, we've wrestled with this bill before.
JUDGE JAMES LAWLOR: I think it's older than I am, Senator.
SEN. MCDONALD: Thank you very much. Seeing no questions, thanks very much for your testimony. Judge Dennis.
JUDGE MAUREEN DENNIS: Good afternoon, Senator McDonald, Representative Lawlor, and Honorable Members of the Judiciary Committee. My name is Maureen Dennis, and I'm the Judge of the Superior Court.
And I currently have the pleasure to serve as the President of the Connecticut Judge's Association. Our association consists of approximately 238 members, including judges, senior judges and trial judge referees.
The primary matter that I would like to address this afternoon is House Bill 5036, AN ACT CONCERNING SALARIES OF JUDGES, FAMILY SUPPORT MAGISTRATES AND REFEREES.
This bill, as drafted, would raise our salaries by 2%, effective January 1 of 2009. I would like to express the sincere gratitude of our entire membership to the Governor for proposing this bill and for supporting an increase in our compensation.
We are truly appreciative of Governor Rell's proposal for this increase in our salaries. We support the increase, but are hopeful of achieving any future increases by a slightly different method.
In February of 2007, the Commission on compensation of Elected Officials and Judges issued a report to the General Assembly recommending that increases in the salaries of judicial officers, as well as those of the Members of the Legislature, be linked to the increases received by Executive Branch Managers.
The final report of the Compensation Commission for this year has not yet been issued, but our understanding is that their recommendation remains the same as the recommendation last year, that judicial salary increases and increases in the per diem rates paid to senior judges and judge trial referees be linked to the increases received, if any, by managers in the Executive Branch.
Having any judicial salary increases tied into a set index would provide some level of predictability to judicial officers, as well as to those working to plan, craft, and implement the state budget.
Also it would mean that we would not need to come before the Legislature every few years seeking pay raises, which, at times, have been disproportionately high to make up for periods of years when no increases were provided.
Having to lobby another branch of government for salary increases is certainly awkward in terms of judicial independence.
We feel that by eliminating the need to petition the Legislature for pay raises that judges can be more involved collaboratively with the Legislature on the myriad of other issues so very important to the judicial department and those who we serve.
There are three equal branches of our government, Executive, Legislative, and Judicial. Basic principles of fairness and equity would seem to require that all three branches be treated the same in the manner of calculating any compensation adjustments.
If the method recommended by the Compensation Commission were adopted, salaries of judicial authorities would be increased by the same percentage received by managers in the Executive Branch, and, correspondingly, if the Executive Branch managers receive no increase, then there would be no increase to judicial authorities.
We would urge you to review the 2007 report from the Commission on Compensation of Elected Officials and Judges, which further expounds upon the arguments in support of this method of structuring any pay increases.
Not included in my written materials is a brief comment that I would like to make regarding House Bill 5528, AN ACT CONCERNING FREEDOM OF INFORMATION.
I was not aware of that particular bill or the contents of it until this morning, and the potential impact that it would have. I don't think I need to canvas our membership to know that we would be opposed to having our addresses made public, if we do not want them to be public.
Many of us, myself included, have had more than one death threat made against us, in the course of our service to the state. And for our own protection, and particularly the protection of our children and families, I would not, certainly, want our members' addresses disclosed, unless they wished them disclosed.
That having been said, thank you for allowing me the opportunity to testify before your committee on behalf of the Connecticut Judge's Association.
SEN. MCDONALD: Thank you very much, Judge Dennis. Are there any questions? Representative O'Neill.
REP. O'NEILL: I'm sorry, and maybe I'm missing it. Is the suggestion from the 2007 report of the Compensation Commission, is that contained within House Bill 55, what is it?
JUDGE MAUREEN DENNIS: No, Representative, O'Neill. Actually, that's a separate bill. I believe it's Raised Senate Bill 600, which is not down for today.
There is a separate bill, based upon the recommendation, I believe, from last year, which includes a proposal to link any salary increases for judicial authorities, as well as Members of the Legislature, to any increases received by the Executive Branch managers.
REP. O'NEILL: Okay. So I wasn't because I was going to get new glasses if I couldn't.
JUDGE MAUREEN DENNIS: No.
REP. O'NEILL: Okay.
JUDGE MAUREEN DENNIS: No. What I said was we appreciate the proposal in the bill before you today, but would like to achieve any increases by a different method.
REP. O'NEILL: Okay. And, for what it's worth, I think I got my first death threat about a month after I was sworn into office, by somebody who lived on the street that I lived on. Thank you very much, Judge.
JUDGE MAUREEN DENNIS: Thank you.
SEN. MCDONALD: Next is Harry Mazadoorian, followed by Jeanne Milstein. Is Jeanne still here? There she is. Good afternoon, Sir.
ATTY. HARRY MAZADOORIAN: Good afternoon, Senator McDonald, Representative Lawlor. I'm grateful for the opportunity to testify in favor of Raised House Bill 5531.
I'm Harry Mazadoorian of Kensington. I'm an attorney, an arbitrator and mediator. I serve as Distinguished Senior Fellow at the Quinnipiac University Center on Dispute Resolution, although my comments today are my own and not the University's.
This bill, in which I speak in favor of, is a long time coming. It's a gradual evolution of the Arbitration Act, which was passed more than 50 years ago.
I would point out, and I've submitted written testimony that, as I've said in my written testimony, Connecticut has a rich and long history with arbitration, having been a leader.
My research indicates that as far back as 1753, Connecticut was the first of the colonies to adopt an arbitration act, and subsequently, 1794 and other dates were critical in the development of arbitration.
I'd also point out that Connecticut should be proud to have two of the National Commissioners who were responsible for the drafting of this bill, Francis Pavetti of Waterford and Barry Hawkins of Stamford.
And I don't know if there's any other state that's had a drafting committee from the National Conference of Commissioners on Uniform State Laws with two commissioners from this state.
The bill, I'm very interested in what the bill does. I served a long time ago as Legislative Commissioner for this Assembly, and I'm interested in the waybills progress.
This bill simply brings the Arbitration Act into the 21st Century. It codifies. It resolves ambiguities. It brings uniformities, and it really deals with the next-generation issues.
Some of my colleagues who will testify after me will get into specific provisions, basically, which deal with arbitrability provisional remedies and disclosure.
There's nothing revolutionary in this bill. And it actually does nothing more than to take disparate court decisions and bring them to some uniformity. It does not seek to expand arbitration or the use of it beyond where it is.
I think I should conclude with anticipating some comments I've heard in criticism of the bill. And there are some very thoughtful comments advanced, certainly, about two or three aspects of the bill.
I'd like to address them one by one. One is there has been some suggestion, I think our Attorney General has submitted testimony that certain Connecticut statutes, such as the Lemon Law Act and certain labor arbitration acts, should be excluded from the bill.
And I simply want to urge upon the committee that this bill and the current Arbitration Act only apply to written agreements that parties have agreed to.
There are many statutory schemes of arbitration, which don't fall within this bill. The latter parts of this bill, Section 32 on, take some of those statutory schemes and adopt, by reference, provisions of this bill.
If that is not solved by this committee, that can easily be corrected by some drafting with the Legislative Commissioner's office.
Secondly, I've heard criticism recently and when this bill was last before us, about punitive and an effort by this bill to impose punitive damages.
And nothing could be further from the truth. Punitive damages may be awarded by arbitrators now. This proposed bill simply seeks to impose limits and standards for the awarding of punitive damages, which limits and standards are not contained within the legislation now.
And, finally, there have been some very thoughtful comments about unconscionability and contacts of adhesion. I don't think any supporter of arbitration feels that there should ever be an unconscionable provision used substantively or procedurally in arbitration.
I would submit to the committee that the courts have come a long way in striking down any provisions of arbitration which have an unconscionability aspect to it, either in the way it was presented to a consumer or the provisions of it, imposing costs or traveling by distance.
So I think that's been long-handled by the courts. Also, just about all of the major administering arbitration organizations have adopted due process protocols, whereby they will not even deal, they will not take a case that has any aspect of unconscionability to it.
All in all, this bill's been a long time in the making. It was studied by the National Conference for years and years, and I urge its adoption. If I can, I'd be happy to answer any questions.
SEN. MCDONALD: Thank you. Are there any questions? I'm sorry. Representative O'Neill. Okay.
REP. WRIGHT: Thank you, Mr. Chairman, and thank you for your testimony, Professor Mazadoorian. I'm just wondering, could you elaborate a little bit more on the Federal Preemption Doctrine and how it affects consumer-type agreements with arbitration clauses?
ATTY. HARRY MAZADOORIAN: Yes. There have been a number of significant court decisions, in fact, a U.S. Supreme Court decision, setting forth that the Federal Arbitration Act, which reaches many, many, many transactions that are covered by this Act, could not have a carve out for any specific type of arbitration.
There was one case that came before the court, whereby I believe it was the Colorado Supreme Court. The Colorado Legislature said with these consumer contracts, you've got to have this type of font, this type of lettering. It's got to be at the top of the contract.
And the U.S. Supreme Court said that's a great idea, but you just can't do it. The Federal Statute does not permit that. So there has been a preemption in the field, and that's been long upheld by the courts.
REP. WRIGHT: Just one more question. I note in your testimony that you relate that consumer arbitration or arbitration, commercial arbitration, has been around for a very long time in Connecticut.
And could you explain to us why it is that arbitration and alternative dispute resolutions are a good alterative to litigation?
ATTY. HARRY MAZADOORIAN: Yes. And I would preface my comment by saying they're not always a good alternative. There are certain cases that can only be resolved in the courts. Certain issues where a type of remedy is needed or a decision-making process is needed which requires the court.
But arbitration and other alternative dispute resolution mechanisms serve as an opportunity to bring a more efficient, a more timely, a more inexpensive process to those many, many cases, which don't have to go through the court.
No real supporter of ADR, Alternative Dispute Resolution, wants to remove from courts those cases which should be there. But the fact remains that more than 97% of all lawsuits filed across the country do not get to court.
They start in court, but they don't get to trial, I should say. And of those that start trial, less than 1% actually go to conclusion. In the meantime, a great deal of expense is incurred, delay, shattered relationships and disappointment.
The supporters of alternative dispute resolution simply say let's use this faster, more efficient process for those cases which don't require court intervention, and move them to an alternative track.
And that would better enable us to take those cases which really need focus by the court, and let them have the full attention of the court.
REP. WRIGHT: Thank you very much for your testimony, and thank you, Mr. Chairman.
SEN. MCDONALD: Thank you, Representative Wright. Representative Olson.
REP. OLSON: Thank you, Mr. Chairman. Attorney Mazadoorian, I just want to thank you so much for coming in today. Your words and your testimony is very persuasive.
Your skills in arbitration and dispute resolution are well known and well established.
Therefore, I think what you shared with us today will carry great weight. So I just want to thank you for coming in today.
ATTY. HARRY MAZADOORIAN: Thanks for those comments.
REP. OLSON: Thank you.
SEN. MCDONALD: Thank you. Are there other questions? Representative O'Neill.
REP. O'NEILL: Yes. Hi. You said that you had anticipated some of the complaints, and I was distracted for a while, so if this has already been asked and answered, tell me so.
But the folks at the Legal Assistance Resource Center have submitted written testimony, which I assume you've not had an opportunity to read.
ATTY. HARRY MAZADOORIAN: I have not.
REP. O'NEILL: But they say that we should not act on this bill unless it's amended to incorporate consumer protections contained in the--
ATTY. HARRY MAZADOORIAN: I'm sorry. I didn't hear, corporate consumer protection?
REP. O'NEILL: Unless it incorporates consumer protections contained in the NCLC Model Arbitration Act, and I guess NCLC stands for National Association of Consumer Advocates.
So, and I'm not sure what they all, but is that an objection you've heard about previously, and do you have an opinion about it?
ATTY. HARRY MAZADOORIAN: When I say who are the objections that we, that this bill was proposed before this Legislature several years ago, and those were some of the comments then.
I have a couple of concerns with amending the bill, which is intended as a uniform act to deal with consumer matters. And, again, I will say, as I said in my testimony, I think attention to consumer issues in arbitration is of the utmost importance.
Far too often, we hear about people who participate in, who get a bill, and somewhere, hidden in that bill, there's an arbitration agreement or there's an arbitration agreement whereby you have to travel to a distant venue and expend large sums.
That's bad stuff, and nobody wants that. I'm simply saying that any effort to deal specifically with one type of issue might very well jeopardize the entire bill because of the preemption issue.
But, more importantly, I would submit to you that there is a great deal of attention being given to this in the courts, and that there are many, many court cases that have loudly and proudly set forth the proposition that if an arbitration matter comes before the court, and there is an element of unconscionability, either substantive unconscionability within the arbitration agreement itself, such as having to expend a lot of money or not having a right to present your witnesses or a procedural unconscionability, i.e., you don't even know you're supposed to have submitted to an arbitration agreement because it was hidden away in your credit card bill, the courts will not enforce that supposed arbitration agreement.
And, most importantly, the major arbitration associations in this country, which do the bulk of these cases, have adopted due process protocols whereby they have enumerated a number of factors which they require be present in the arbitration agreement before they would do it.
So the courts are striking them down, and you can't get anyone to take the matter. I think the consumer has substantial protection.
It may be necessary in another piece of legislation to raise some of those issues, but I don't think it would fit, and I don't think it would be appropriate in the proposed Uniform Arbitration Act.
REP. O'NEILL: And I think that that answers my questions. Thanks.
ATTY. HARRY MAZADOORIAN: Good.
SEN. MCDONALD: Other questions? Let me just ask you, under this uniform law, if an arbitration award is appealed to the Superior Court, what is the scope of review of the Superior Court in reviewing that arbitration award?
ATTY. HARRY MAZADOORIAN: Under the existing statute and the current statute, the limits continue to be, the basis for review are quite limited. The mathematical miscalculation--
SEN. MCDONALD: Let me rephrase my question. I understand what my question [Gap in testimony. Changing from Tape 2B to Tape 3A.]
--award under the Uniform Act. The standard has not expanded. There is a statutory review procedure and a expanding common law review procedure.
Basically, the manifest disregard of the law that was set forth in U.S. Supreme Court case initially is Swan v Wilko. That is not contained within the statute. The statutory review procedures are still quite limited.
But most courts, most federal courts and most state courts, have adopted a manifest disregard rule, which basically says if the arbitrator knows the laws but manifestly disregards it, then we're going to take it upon ourselves to set that aside.
There is a controversy presently before the U.S. Supreme Court in the Hewlett case as to whether parties can define their own expanded scope of review.
Let's say we sign an arbitration agreement, and we say this is a big case, and Mazadoorian is the arbitrator. We've got confidence in him
But, gee, I want to have a review. Can they put into their arbitration agreement that we will have the full right of review that you have in court?
Right now that's deemed to be inconsistent with the principles of arbitration because it takes away from the efficiency and the streamlining effective arbitration.
Within a matter of months, the U.S. Supreme Court will pronounce upon that and whether there will be expanded rights, where the parties can contract for expanded right to review. I don't know if I've answered your question, Senator.
SEN. MCDONALD: Oh, well, I guess another way of saying it is this proposal is silent on that issue, so it wouldn't disturb existing case law interpreting--
ATTY. HARRY MAZADOORIAN: No. It would not. And just the provisions are set forth in Section 23, but they are, you know, they're basically the same provisions that we have in the existing law of corruption, impartiality, mathematical calculations. It would not change that substantially, as I understand it.
SEN. MCDONALD: Well, the existing, just so we're clear, the words set forth in Section 23 are the basis upon which an award could be overturned.
ATTY. HARRY MAZADOORIAN: Vacated, yes.
SEN. MCDONALD: Or vacated, but not the scope, not the standard of review.
ATTY. HARRY MAZADOORIAN: Not the standard of review, and that was considered. But the expanding the standard of review was considered, as I understand it, by the drafters of the bill.
And they chose not to deal with that in the bill. And, in fact, we now see it playing out in the Supreme Court.
SEN. MCDONALD: And just to follow up on that, not trying to be too much of a state's rightist, but why do we care what the U.S. Supreme Court says about interpretation of arbitration contracts, as a matter of state law?
ATTY. HARRY MAZADOORIAN: Well, that's a wonderful question, and I think the U.S. Supreme Court will be opining, technically, about the Federal Arbitration Act.
But I guess we would have dual jurisdiction on most of these. It's hard to imagine a transaction that isn't in some way touched by interstate commerce these days. So I guess the U.S. Supreme court's decision would actually apply to the Federal Arbitration Act.
SEN. MCDONALD: It would apply to the Federal Arbitration Act, but a, I mean, I just want to understand this a little more clearly.
If a contract in Connecticut says it's governed by Connecticut law, then using Connecticut, and we're going to avail ourselves of an arbitrator in Connecticut, is it your?
ATTY. HARRY MAZADOORIAN: It would be subject to these basis for vacation. And if your question is are there standards set forth for the court to review this, there are, as set forth in Connecticut Supreme Court cases.
SEN. MCDONALD: But you could still privately contract what jurisdiction you're going to have apply and what law is going to apply. You still have your [inaudible].
ATTY. HARRY MAZADOORIAN: That is done routinely, but the interesting question is could you contract to set an identical standard of review as you would have in a judicial proceeding, the basis of error that you would have in the judicial proceeding? And that question, as I understand it, is unresolved in the State of Connecticut.
SEN. MCDONALD: Thank you very much. Seeing nothing further, thank you for your time, Sir.
ATTY. HARRY MAZADOORIAN: Thank you.
SEN. MCDONALD: Next is Jeanne Milstein, followed by Britt Harwe. Is Britt Harwe here?
JEANNE MILSTEIN: Good afternoon, Senator McDonald, Representative Lawlor, Members of the Judiciary Committee. My name is Jeanne Milstein, and I'm the Child Advocate for the State of Connecticut.
I appreciate the opportunity to testify in support of Raised House Bill 5699, AN ACT IMPROVING OUTCOMES FOR CHILDREN UNDER THE CUSTODY, CARE, OR SUPERVISION OF THE COMMISSIONER OF CHILDREN AND FAMILIES.
I fully support the raised bill. This bill would require judicial review of children in the care of DCF every three months, rather than annually, as is currently required.
In addition, it would require judicial review upon occurrence of certain triggering events, which include two or more non-emergency placements within a period of six months, overstay of an emergency or temporary placement, including placement in a safe home, shelter, or short-term assessment and respite home by more than 30 days, transfer to an out-of-state placement, any placement change that results in a change of school, any referral for an expulsion hearing from school, any arrest or placement at a Connecticut juvenile training school, juvenile detention, Manson Youth Institution or York Correctional Institution, failure to place child or youth for adoption within six months of termination of parental rights, failure to place the child or youth in a permanent family arrangement within 18 months of being placed in the custody of the Commissioner and the 16th birthday of the youth.
Currently, there is no requirement for reviews when these significant events occur. As a result, courts often learn about such important events as a child being placed out of state when it is too late to intervene and issue orders.
Further, the bill would require DCF to provide the court with comprehensive information, including information regarding the number of placements, educational progress, the child's physical well-being, the plan for establishing and supporting lifelong family connections with adults who are significant to such youth.
This report would enable the court to have the information it needs, when it needs it, to encourage all parties to focus not only on safety but a permanency and well being.
This is such an important bill because, once again, it really does focus on permanency on well being. It focuses on responsible kind of care for kids, not moving the kids around, making sure that we know when a traumatic event occurs.
And, for these kids, any of these movements is traumatic. They've already, I mean, just by being removed from your home is a traumatic event enough. So I think this bill makes common sense. It offers another layer of oversight and accountability.
And when you think about time in the life of a child, three months is so important. A year is a very, very long time. So I thank you for this opportunity, and happy to answer any questions that you might have.
SEN. MCDONALD: Thank you. Are there any questions? If not, thanks very much.
JEANNE MILSTEIN: Thank you.
SEN. MCDONALD: Next is Britt Harwe, and I still don't see Judge Jones. So Michelle Lettieri, is Michelle Lettieri here? You'll be next, and then is Commissioner Danaher here? There he is. You'll be after that.
BRITTMARIE HARWE: Good afternoon, Senator McDonald, Representative Lawlor and distinguished Members of the Judiciary Committee. My name is Brittmarie Harwe, from Wethersfield.
I am the Co-Founder of the Chiropractic Stroke Awareness Group, which consists of hundreds of young people, mostly between the ages of 25 to 45, who have been injured by chiropractic adjustments.
I'm testifying in support today of Senate Bill 483, AN ACT ON PROMOTING PATIENT SAFETY AND ACCESS TO PROVIDER INFORMATION.
On April 18, 1993, I was just 26 years old, the day before my daughter turned 2. I went to a chiropractor because of a sore shoulder and neck.
I had a stroke immediately following the chiropractic cervical adjustment. The chiropractor called 911 and reported his patient was having a reaction.
He didn't mention he had just performed a neck adjustment, nor did he mention that I became immediately so dizzy I was unable to sit or stand without his assistance.
I couldn't speak. I was unable to focus my eyes. I was taken by ambulance to the hospital, and tests revealed that one of my vertebral arteries was crushed during the adjustment.
I was left with many neurological disabilities, including left-side weakness, paralyzed vocal chord, and the worst of all, I lost the ability to swallow.
Since I can't swallow, I have a feeding tube that was surgically placed in my stomach. For the past 14 years, I haven't been able to eat anything except liquid nutrition.
This stroke has forever changed my life. Later, I learned from my attorney, this chiropractor had not only hurt me, but had a previous large malpractice settlement.
A large settlement usually involves severe injury or death. Had this information been available, it would have raised red flags, and I might not have gone to him for treatment.
Chiropractic treatment is always advertised as safe and natural. No risk is ever mentioned. As a matter of fact, I had asked the chiropractor before doing treatment if there were any risks.
I will never forget his response. He said some people have reactions. The next time I heard the word reaction was when he called 911. He called it a reaction, but it was a stroke, and I almost died.
Since such severe injury is a possibility with chiropractic adjustments, malpractice and other pertinent information about chiropractors should be made available.
Many of the victims I have spoken with had an artery torn during the neck adjustment. The symptoms of stroke happened right away, but there can be a delay of days or weeks before a major stroke happens.
Because of this delay, the cause is not related back to the original injury that caused the original cause of the tear. So malpractice is never filed, and chiropractor's medical malpractice liability insurance never increases.
So it is not a good indication of the safety of chiropractic neck adjustments. I feel chiropractors, above all, should be included in this law because Connecticut state law requires all licensed physicians to be included in this physician's profile.
By the statute, chiropractors are called licensed physicians. And since they have the privilege of using the title doctor, this information should be available.
The State of Florida has provided their residents with a similar system called the practitioner profile since 1997. I feel strongly the residents of Connecticut deserve the same benefits other states already provide their citizens.
Thank you for giving me the opportunity to express my concerns, and I hope you will support this bill.
SEN. MCDONALD: Well, thank you very much, and, obviously, it's more than just concerns. You have a very personally compelling story, and I appreciate you sharing it with Members of the Committee.
Let me profess my ignorance here and ask you a question. When there's a neck because, frankly, I've never gone to a chiropractor.
When there's a neck adjustment, and, as you indicated, there could be a tear of an artery or some type of early indicators that something went wrong, do you have any way of knowing whether early intervention at that point in time might have prevented the stroke from actually taking place?
BRITTMARIE HARWE: [inaudible] stroke information that's out now there's so much about stroke awareness, it is critical to get emergency medical treatment, especially within the first couple of hours.
There are new drugs out there that they can treat you with, clot busting drugs, if given in a right amount of time, can prevent some of the damage. So I don't know.
I was rushed to the hospital, but they had no idea why I was there. He didn't say he had done a neck adjustment or any of the symptoms of stroke he had witnessed.
I was 26 years old, and the hospital had no idea why I was there. MRI and MRA, which finally showed the damage, and the neurologist explained how it happened.
It didn't happen for like five or six days. By then it was too late. The damage was done. So it's very important for any stroke-like symptoms, to get emergency treatment.
SEN. MCDONALD: I just wanted to get a little bit more information from you about the causation issue that you said would preclude an action for malpractice against the chiropractor in a similar circumstance. What is it about the delay that would prevent a claim from being filed?
BRITTMARIE HARWE: Well, what happens, in my case, my artery was crushed during the adjustment, so the stroke happened immediately. Many times, your vertebral arteries run along inside your spine.
When the adjustment is done, an artery is torn. Every few layers in the artery, the tear may not go through all of them. Your body tries to heal itself.
A clot forms. Sometimes, that clot, you heal yourself. You'll never know that you had anything. A chiropractor wouldn't know. But if that clot forms, and it's not done healing, it could be hours, days, even a week later.
Movement, sudden movement can cause the clot to go into your brain, causing a stroke. So because of the delay, they don't know when the tear happened.
Well, if you go back and say when did you first start feeling these symptoms of stroke? Right after the adjustment.
Another misnomer chiropractors complain the symptoms of a torn artery are headache and neck pain. These are common symptoms people go to chiropractors for.
Well, if the, and many chiropractors will tell you, spokesmen of the ACA, saying torn arteries are very difficult to diagnose because the symptoms can be so similar to other symptoms of minor things.
Well, if a person is coming to them with headache and neck pain, and they suspect a possible tear, doing an adjustment will just make the tear worse, and the stroke can happen right away, again, or it can, depending on the size of the tear.
And since it can be a few hours or like the next day when the stroke occurs, it's hard to prove causation, so no claims get filed. Their malpractice doesn't increase.
But I've heard the same story from hundreds of people, even using the same words, reaction, don't worry. I, unfortunately, couldn't speak or talk, but many people who have had just the tear right after the adjustment have been dizzy, have been nauseous.
They've been told it's just a reaction. Oh, it's your body releasing toxins. Don't worry about it. Some people wait, and then, unfortunately, it's too late to get any kind of medicine when they do have the major stroke.
SEN. MCDONALD: Well, thank you very much. Representative Fox.
REP. FOX: Thank you, Mr. Chairman, and thank you for your testimony this afternoon. I don't know if you mentioned this in your initial statement. Can you tell us what was the initial reason that you went to go see a chiropractor?
BRITTMARIE HARWE: I had a sore shoulder. I worked in an insurance downtown on the phone a lot, on the computer. One morning I woke up. It was very sore. It hurt to move.
I went to work that day, and I had called my regular doctor. They couldn't see me for a week. I had tried hot packs, aspirin, whatever. The next day, it was still there.
Finally, a friend at work said, you know, I go to this chiropractor. Why don't you try and go? And they got me in that day. So I went one day, and then I had a follow-up appointment. That's when my stroke happened.
REP. FOX: Now when you met with the doctor, the chiropractor, did they take any kind of a history of you? Okay.
BRITTMARIE HARWE: Yes. He asked, you know, about why I'm here, what brought me there, family history. I did ask him what could happen? And he mentioned you could have a reaction.
I guess I was very naive at 26. I didn't understand. He was very blasť about the way he said you can have a reaction. So I took it to mean an allergic reaction.
I had no idea they classify stroke as a reaction. Because if I heard the word stroke, that's something you really don't want to do. And I went to a chiropractor for a simple reason.
Many people go to chiropractors for very benign, simple reasons. There are other treatments that have no risk, but if you do want to continue with the chiropractic treatment, that's fine. You should just be told up front.
But also that is why to have all of this information available on a profile. They're called physicians. They're called doctor. The way it's advertised is always safe and natural. So you have no idea that there's risk, and when they say reaction, reaction.
If you can see information up there that there's malpractice claims sometimes, that might get you to question, well, if there's no risk, why are there these claims? I know there can be for all sorts of reasons, but it could be a red flag.
REP. FOX: Well, I mean, I've never been to a chiropractor myself either. I have, I do know people who have gone. Some of them do find some relief by going to a chiropractor.
BRITTMARIE HARWE: Oh, absolutely, from lower back pain. I've heard from a lot of people that have had benefit from that. And I don't say, you know, I'm not anti-chiropractic. I just want the information out there and available to the public.
REP. FOX: Well, I was going to say there's also some though, I know, who've gone who actually had some serious back problems, whether it's a herniated disc, something that was really wrong that would have been detected on an MRI, if that had been ordered.
And what happens is the chiropractic treatment can really make things worse, when you're in that kind of situation, so, you know.
BRITTMARIE HARWE: Absolutely. I mean, there's good and bad to all benefits, but what I'm saying is make this information available to the public.
REP. FOX: Okay. Well, thank you, again.
BRITTMARIE HARWE: Thank you.
SEN. MCDONALD: Any further questions? If not, thank you very much.
BRITTMARIE HARWE: Thank you.
SEN. MCDONALD: Next is Michelle Lettieri, followed by Commissioner Danaher.
MICHELLE LETTIERI: Good afternoon. Thank you, Co-Chairman, Senator Andrew McDonald and Co-Chairman Representative Michael Lawlor and the Members of the Committee for holding this important hearing today, and for the opportunity to submit testimony to you today in support of House Bill 5032.
I am Michelle Lettieri, Victim Advocate for Mothers Against Drunk Driving in Connecticut. The impact of operating a boat vessel while intoxicated is felt throughout the state in the loss of innocent lives, the grief expressed by surviving family members and friends in the rise of high-risk behavior.
All too often, the toll is listed as statistics. In 1993, my mother, Julia Mancapola, was killed by a drunk driver. I was told she was killed instantly.
This was 15 years ago, and I can still feel the emptiness in my heart. My life has been changed forever. To MADD, even one death is unacceptable.
As a victim advocate, I have been contacted by families who have been affected by drinking and boating. Most recently, I have been in contact with families of a boating crash on the Connecticut River in Old Saybrook.
This crash resulted in three injuries and one fatality. It is time to strengthen, reform Connecticut criminal DUI enforcement sanctions by extending the charges of manslaughter to cover boating crashes caused by those under the influence of drugs and alcohol.
This charge should be considered a Class C felony. On behalf of Mothers Against Drunk Driving, MADD Connecticut, I respectfully request the committee to support bill 5032. Thank you.
SEN. MCDONALD: Thank you. Representative Lawlor.
REP. LAWLOR: Thank you, Mr. Chairman. Hello, Michelle. Thanks for coming up here today.
MICHELLE LETTIERI: Thank you for [inaudible].
REP. LAWLOR: I know you and I have worked together on many similar projects, and, more often than that, we've been successful, and I'm optimistic that we can shepherd this through the whole process.
We may have to make some changes. I know there are some technical concerns here and there. But thank you for bringing this to our attention.
MICHELLE LETTIERI: Thank you.
SEN. MCDONALD: Is there anything further from Members of the Committee? If not, thank you very much.
MICHELLE LETTIERI: Thanks.
SEN. MCDONALD: Commissioner Danaher, followed by Barry Hawkins and Deb Baudry. Is Deb Baudry here?
DEB BAUDRY: Yes.
COMM. JOHN DANAHER: Good afternoon, Senator McDonald, Representative Lawlor, Members of the Judiciary Committee. My name is John Danaher, the Commissioner of the Department of Public Safety.
With me is Colonel Davorer, Deputy Commissioner of the Department. We'd like, if we may, to address two acts that are before you today. One, I was present when you heard testimony already from Commissioner Lantz.
It's House Bill 5528, AN ACT CONCERNING THE FREEDOM OF INFORMATION ACT. She made many of the points that we intended to make, and we have submitted written testimony.
I thought it might be helpful if I directed the committee to the one aspect of the act that I think generates the problem, if I understand it correctly.
It's Section 4, Subsection A, and I'll focus on the language that I think is at issue. The act, as it is now phrased, says no public agency shall disclose, under the Freedom of Information Act, the residential address of any of, and then under the new language, it's officials or employees.
And then it goes on from there. The way we understand that act, and I think I share this concern with Commissioner Lantz, is that the Department of Public Safety would not release the residential addresses of its employees under this act.
But those addresses would be available if they were in the custody or possession of another agency, such as Department of Administrative Services, which does, in fact, have residential addresses for employees, or Department of Revenue Services or the Office of State Ethics.
And that's the concern that we have. And unless there are further or any questions with regard to that, I would rely on the written testimony we submitted. I just hope it might clarify the discussion that was going on with Commissioner Lantz.
The other bill which we wanted to appear on is House Bill 5675, oversight of intelligence gathering by law enforcement agencies. Our concerns are several with regard to this bill.
Right now the Central Criminal Intelligence Unit operates a statewide police intelligence network, and that's governed by federal regulation.
Federal Code provides that the standard for records into the system is reasonable suspicion. The bill calls for a change to an articulable suspicion, which is a change to the language of the federal law.
We're concerned about language in Section 2, which requires the disclosure of facts and circumstances that constitute probable cause for arrest.
Section 2, Subsection B provides, specifically, under the new act, that a record of arrest would include the facts and circumstances that constituted probable cause for the arrest, which could include the names of witnesses.
It could include the names of victims. It could include the names of confidential informants, which could now become public. This would compromise what we believe, potentially, the safety of those individuals.
It could also compromise additional collateral investigations that would flow from the information contained in the police report. We are concerned about Section 3(D), which appears to give law enforcement authority status, within the meaning of the Code of Federal Regulations, to a legislative oversight committee.
There's a question, we think, as to whether a legislative body can expand upon the federal definition of a law enforcement authority.
It could also generate a separation of powers issue, since the oversight committee would be the only non-Executive Branch agency participating in the sharing of criminal intelligence information.
Right now the Connecticut State Police participates in the Connecticut Intelligence Center, which we refer to as CTIC. It's a regional intelligence center.
It's staffed by local, federal, state agency personnel. They share expertise, resources, and intelligence information, formally, informally, in conversation, in discussion.
It includes personnel from the FBI, State Police, Connecticut Police Chief's Association, the Coast Guard and others.
An FBI agent has day-to-day authority over that center, which currently is located in the FBI's office in New Haven, and it is funded by local, state and federal money.
All of these Executive Branch agencies are accredited. They've agreed to share information pursuant to the provisions of 28 CFT, Part 23. The guidelines set forth in that federal regulation prohibit the sharing or dissemination of information outside of law enforcement.
The concern that we have would be that if any of those other entities, some of which, well, none of which we have any control over, are concerned that information that is passed to our employees would be shared outside of sworn law enforcement, the response might be to determine not to share that information with us.
Since 9/11, the emphasis within law enforcement has been upon the sharing of information, which did not happen in the past. The reason that it didn't happen in the past, well, there were many reasons, but one was the concern about confidential information being compromised.
I'm aware, right now, of the situation in Europe in which an intelligence committee within one country believes that another country compromised a confidential information.
It's going to jeopardize, potentially jeopardize their exchange of information. We've moved a long way past those concerns in recent years.
The existence of the CTIC and its operations are a post-9/11 creation, and it's resulted in rapid exchange of information relative to investigations that didn't happen in the past.
We're concerned that this bill has the potential to cut off or at least diminish that flow of information, which, I think, is the opposite direction that we want to move in the current law enforcement environment.
So those are our concerns with regard to the bill as it's framed. I'd be pleased to answer any questions you may have
SEN. MCDONALD: Thank you. Are there any questions? Representative Lawlor.
REP. LAWLOR: Thanks, Mr. Chairman, and good afternoon, Commissioner. We had a similar discussion a year ago, I think, on the same bill.
And just a couple things. First of all, on the making public of police reports, and I think we talked about this last year, and I think we actually changed the law somewhat already in the interim to provide for that.
But most states require that the police make available a basic statement of probable cause related to every arrest, and that's something that has not been the obligation in Connecticut.
But in most states, that does exist, and that does give the law enforcement agency the ability to not reference names of victims or phone numbers, that type of thing.
And so I think it's basically requiring the release of some fundamental statement of probable cause, is what we're talking about?
So is that, how would it be a concern if you controlled the contents of the report, in terms of the details, but the essence of it, the probable cause statement is what would be released? Is that not right?
COMM. JOHN DANAHER: Well, the, I'm trying to think of the range of what could go into an arrest report.
I mean, I'm certainly familiar with situations in which a particular case, which identifies the probable cause, may give rise to investigation of other cases.
The other targets would know that they're involved in criminal activity with a person who had gotten arrested.
If the facts that constituted the probable cause that led to the arrest of the first individual were to be made public, then the other potential targets, down the road, would know what led to the first individual. I believe it could compromise subsequent investigations.
REP. LAWLOR: I'm just saying, this, actually, is a law in the vast majority of states that this is like standards. Connecticut is the exception, not the rule, in this respect.
There's no obligation to release anything at a time of arrest, with the exception of where there's an actual arrest warrant that backs up the arrest. But this proposal's conforming the state with the rest of the country, not the other way around.
COMM. JOHN DANAHER: Well, the, right now as I read this, the record of arrest does call for the release of certain information. All the information that we're calling for here does go to the defendant himself, the defendant, or herself.
The defendant will quickly learn, through the discovery process, what the probable cause was that led to the arrest.
REP. LAWLOR: That I understand, but I'm talking about public information, to the press, typically, is who asks for this kind of stuff. So that's the norm in most states. I'm just saying, you know?
The other thing is because, obviously, what gave rise to this is the concern related to identifying political protestors and setting them up for harassment by law enforcement.
And, obviously, that there was an arrest that gave rise to this concern, and the charges were dismissed, apparently because there was no basis for making the arrest in that case.
And I know that's the subject of civil litigation at the moment. But my question is, what oversight is there to constrain the intelligence-gathering activities of law enforcement agencies, especially when it comes to people who haven't actually committed a crime and aren't threatening to or contemplating committing a crime?
Where's the oversight? I know in the FBI, for example, there's an Inspector General's Office. What's the oversight for the Connecticut intelligence gathering activities?
COMM. JOHN DANAHER: I'm going to defer to the Colonel.
COL. THOMAS DAVORER: Sir, last February, we made an internal policy change in the State Police. We decided that we would not disseminate criminal intelligence information directly.
We would forward that information to the CTIC. The CTIC has a legal staff in place now. It has been put in for a while. There has been new federal privacy mandates out there.
And, of particular concern, are issues involving intelligence sharing to other agencies. So we now get that through, it doesn't come directly from us to our law enforcement agency.
It will go to the CTIC, where it's then vetted for appropriate privacy concerns, U.S. person's concerns and things of that nature and then distributed from there.
REP. LAWLOR: But my question is what's the oversight of this? I mean, you're talking about in-house stuff. I'm talking about like the FBI has an Inspector General's Office, which will do its own investigations.
And if they find the rules have been violated, the FBI's overstepped its bounds, then they will make a report. And this actually happened last year with these national security letters.
The Director of the FBI, himself, had to acknowledge that there was, I think, 3,000 of these letters had been issued illegally, in essence, in violation of the law, where there was no basis for it, etc., etc.
And that came to public attention, and, as a result, the procedures had to be changed. And so there is this sort of quasi-independent oversight in the Inspector General's Office.
And in addition to your point of the separation of powers, I mean, obviously, I think we talked about this last year. In the Federal Congress, there is an intelligence committee that does have access to classified information.
And they're not allowed to disclose it, but they have direct access to it, and they are entitled to receive briefings to exercise oversight over intelligence-gathering activities, for understandable reasons.
Because at some point, it's conceivable that people could get carried away and start infringing on other people's constitutional rights.
So my question is, in our state, what oversight is there of law enforcement intelligence-gathering activities, when it comes to this intelligence, talking about political protestors or dissidents, which was the case here. Where's the independent oversight, is my question?
COL. THOMAS DAVORER: Well, I guess there, maybe that what I'm trying to say is that we did add in that level of review, via the CTIC privacy review.
REP. LAWLOR: Was that someone outside the chain of command, is my questions?
COL. THOMAS DAVORER: Well, they are outside our agency. They're governed, they have their own governance board, policy board and their own staff.
While we do participate in it, for purposes of dissemination, we, obviously, react to threats pretty quickly, whether they're investigated by troopers assigned to the Joint Terrorist Taskforce or whether information comes to us via our criminal intelligence unit.
The question here is what's done with that information? We don't, we are evolving to the point where we don't store that information ourselves anymore.
It's a big sea change for us. We are now going to be forwarding us to the CTIC, whereupon it goes through the appropriate vetting process, and then if it's determined to be suitable for distribution in accordance with current privacy laws, as governed by the 28 CFR 23 requirements, then they would disseminate it accordingly.
REP. LAWLOR: I understand that. But it sounds kind of like not sort of an independent watchdog entity.
It sounds like a coordinating entity, which brings together different state and federal agencies for this purpose, and local state and federal agencies for this purpose.
So my question is who's the outside watchdog on this? Who's making sure that CTIC is not overstepping its bounds [inaudible]?
COL. THOMAS DAVORER: Well, we do have certain, we have an accreditation requirement through the Commission on Accreditation Law Enforcement Agencies.
And we do have our in-house inspections unit that does conduct random and periodic inspections of the intelligence unit to make sure their policies are followed.
REP. LAWLOR: And who gets their reports, just out of curiosity?
COL. THOMAS DAVORER: The Commissioner gets their reports.
REP. LAWLOR: And so do they have the authority to, are their reports public information?
COL. THOMAS DAVORER: No. They report directly to Commissioner [inaudible].
REP. LAWLOR: I understand. But once they've made their report, is it public information? I mean, can we get copies of reports just to take a look and see what they're finding?
COL. THOMAS DAVORER: We're unsure about that one, Sir.
REP. LAWLOR: Okay. And I think, and, again, I certainly understand that in this day of terrorism, we want to encourage law enforcement to do everything possible to protect us. But on the other hand, it can and has gotten, sometimes, to the point of where it's trampling on people's innocent activities and exercising their constitutional rights.
And I think the concern is, since a lot of effort is being invested in this, and a lot of technology and the ability to do more surveillance than was every imaginable just a few years ago, who is keeping an eye on this to make sure people don't get carried away?
Are we only going to find out when someone gets arrested, as was the case with Mr. Krayeske last year, and it turns out there was no basis for it?
It turns out there was a whole sequence of events leading up to that which, arguably, were inappropriate. I mean, or is someone going to be monitoring, on an ongoing basis, like the Inspector General's Office does in the FBI, and says, okay.
There's apparently 3,000-plus illegal uses of the National Security Letters to obtain confidential information about people making phone calls and sending e-mails.
And that did come to light through a very elaborate and independent process, which is set up in the federal system.
We have no equivalent here, on the state level, where either the Legislature or some independent inspector general type is looking for that. That's my concern.
COMM. JOHN DANAHER: I think there may be two answers to that. As I understand it, since the CTIC is now exchanging information with the FBI and other federal agencies, it would be my expectation that the Inspector General would have, for all those agencies, whether it's FBI or Coast Guard or whatever it is, would have the authority to look into the activities of it.
I think that's what the Colonel's referring to by the change that was made by moving this unit into the CTIC, to acquire additional protections. And I think those are part of them.
There is also, as the Colonel indicated, CTIC has a governing board, which we have a seat at that board, but that's it. We don't patrol that board. There are other entities that sit on that board. SAC in charge of the FBI's on the board.
COL. THOMAS DAVORER: The Commissioner of Homeland Security, the five regional police chief representatives, the U.S. Attorney's Office, as examples. There are others.
REP. LAWLOR: And all of those sound like logical people to be at the table. I guess the question is, who's like the watchdog? Whose job is it to make sure that no one is exceeding their powers?
And there are, you know, there are analogous entities on the federal level, which, apparently, don't exist on the state level. There are things that the state police can do, or other law enforcement agencies, local, here, without working directly with the feds.
And, therefore, the Inspector General's office wouldn't necessarily get involved. And so the concern we have, now that we're going down this road, and we're beefing up everyone's ability and almost encouraging everybody to do as much intelligence gathering as possible, in this particular case, and I understand there's a lawsuit pending.
Why it happened, I guess, people can argue about. But it does look as though the Governor's security detail, which is part o the State Police, became aware of a political dissident, Mr. Krayeske, and began a sequence of events where he ended up getting arrested for no apparent reason, based on information that was given to the Hartford Police in a briefing before the inauguration.
So that's what it looks like, and so that really doesn't involve any federal authorities at all. And so the concern, and, again, I'm just using that as an example of something that could happen and actually did happen.
And so the concern is whose job is it to exercise independent oversight over those kinds of decisions, to ensure that people's privacy and civil rights are respected by law enforcement.
COL. THOMAS DAVORER: Well, speaking not specifically to that case, but the example you just provided is an information sharing between law enforcement agencies.
That being said, it is subject to the 28 CRF 23 requirement. In other words, we cannot pass that information directly, without making sure that it meets the criteria and requirement.
To ensure that it does, in fact, meeting those information sharing requirements is why we instituted a policy last February that such information would now be vetted through the CTIC for First Amendment, privacy, U.S. persons and deconfliction reasons.
And that, we believed, would satisfy the, make sure that the criteria is being shared in accordance with the federal guidelines, which is what we have adopted for information sharing.
REP. LAWLOR: So just to be clear, even if there's a meeting, which there was, in that particular case, as I understand it, between the State Capitol Police, the Connecticut State Police, the Governor's Security Detail and the Hartford Police, and that was it, that would still come within the CTIC and the CFR?
COL. THOMAS DAVORER: If that were to happen today, Sir, any information that would have been distributed at such a meeting would have been generated by the CTIC today.
REP. LAWLOR: Okay. Well, if you could check out the answer to the question whether the internal audits, which, apparently, are taking place, are available to the appropriate legislative committees, which do oversight over the State Police, and let us know, that would be great.
COL. THOMAS DAVORER: We will do that. Yes, Sir.
REP. LAWLOR: Thank you.
SEN. MCDONALD: Are there any other questions from Members of the Committee? If not, thanks for your time.
COL. THOMAS DAVORER: Thank you, Sir.
SEN. MCDONALD: Next is Barry Hawkins, followed by Deb Baudry and then Steven Thornquist. Is Steven Thornquist here? Good afternoon, Mr. Hawkins.
ATTY. BARRY HAWKINS: Good afternoon, Senator McDonald, Representative Lawlor, Members of the Judiciary Committee. Thank you for the opportunity to speak on behalf of Raised House Bill 5531, the revised Uniform Arbitration Act.
I'm Barry Hawkins. I'm a partner in the Stamford office of the law firm Shipman and Goodwin. I'm a resident of Bridgeport, Connecticut.
But more importantly, for these purposes, I serve as one of the eight Uniform Law Commissioners for the State of Connecticut, and have done so since 1998.
I served on the National Drafting Committee for the Revised Uniform Arbitration Act, which was chaired by another Connecticut Commissioner, as mentioned by Professor Mazadoorian, Francis Pavetti, of Waterford, who could not be here today.
He and I worked on a summary, a two-page summary, that puts forth relevant information concerning the act that's in your materials under the byline of Francis Pavetti.
And I don't intend to go over the material that's in that today because I think Professor Mazadoorian did a wonderful job of explaining what it is and why we're here. I can tell you one thing, and that is [Gap in testimony. Changing from Tape 3A to Tape 3B.]
--I do arbitration because some of my clients require that I do arbitration. They enter into agreements, construction contracts, which call for arbitration as the method of setting the dispute.
In that interest, I have an interest in making sure that if you are obligated to do arbitration as a method of resolving the conflict that you have, that you do it with the best law possible, and that's what we've tried to do in drafting the Arbitration act.
The original Arbitration Act was drafted in 1955. It's now 53 years old. It is showing its wear and tear. It's time to be tuned up and brought into the 21st Century.
It's time to have reflected in it the various changes that have been made in case law in Connecticut and nationally, in the 53 years since it's been here.
This is not a law in favor of arbitration. It's not a law to promote arbitration. It's a law that says if you are in arbitration, and many of our clients and many of the corporations and many of the people of Connecticut are contractually obligated to be in an arbitration, that you ought to have the freedom to contract, the freedom to have, the ability to frame that arbitration and make it the best and most responsive and most efficient way of resolving your dispute.
If the parties want to contract for expanded discovery, if the parties want to contract for having a record, if the parties want to contract for having the arbitrator cite the law and follow the law with a written record and a stated or reasoned decision for his decision, that's all fine.
That's the freedom of contracting, within the arbitration, to provide that. That's what this bill, this law does.
This act is designed to give us and up-to-date and efficient arbitration act, not to promote arbitration but to say, if you're in arbitration, let's do it well. I'll be glad to answer any questions that you may have.
SEN. MCDONALD: Thank you, and thanks for your testimony this year and in other years when this legislation has been before us.
To your last point, Barry, I just wanted to ask you, what impact would this legislation have on existing contracts that have arbitration provisions?
And, in particular, I guess, refining that question, would this apply to only contracts entered into after the effective date, or would it apply to existing contracts?
ATTY. BARRY HAWKINS: It has a fairly elaborate mechanism, but it would not apply to arbitrations that have already been commenced under an old arbitration act.
It would provide for all arbitrations. It would provide the rules for all contracts entered into after October 1 of 2008.
And if you had an earlier contract that provided for an extended period of time, for example, if the parties had agreed for the next five years, this will be our rule, it has a saving provision that says on October 1 of 2009, you've got to be out of that old contract and into the new law.
So that if you had an effective date of October 1, 2008, it would apply to all contracts after October 1, 2008, and even earlier contracts would have to be amended to provide by October 1 of 2009.
SEN. MCDONALD: This question is only half rhetorical. Why do we have a right to force parties to renegotiate their contracts?
ATTY. BARRY HAWKINS: That's an interesting question. It was left for, there was case law indicating that it was possible to do that because you are talking about the creation of rights that bring you to resolving issues.
And, as a practical matter, I don't know of any contracts, other than wavier agreements, which are not within the scope of this act, unless the committee brings them in to make them a part of the act.
But as part of the original Uniform Arbitration Act, a multiyear contract was not to be a part of the act. These agreements to arbitrate had to be voluntary agreements to arbitrate.
So you're talking about parties having signed an arbitrarial agreement. It is possible to have one that extends for the construction of the XYZ building, which is expected to take two years.
That is an issue, and I'd be glad to look at that. But I don't think that there's much that happens by way of voluntary agreements that would extend over a multiyear period.
SEN. MCDONALD: Okay. Well, if we modified this legislation to apply only to contracts entered into after a certain date, would that be objectionable to you?
ATTY. BARRY HAWKINS: No. It would not.
SEN. MCDONALD: Okay. And with respect to, well, and I ask that because I guess, without having scrutinized this legislation to the degree that you and the Professor have, I'm trying to get my arms around how much substantively here is different than existing law.
And I know it's trying to pull together a lot of case law and current practices. But I've got to imagine that there are chunks of this that would be considered substantive as opposed to procedural.
And it just concerns me that we would be unloading some new substantive elements to arbitration contracts without people having known about them and considered them, at least, prior to entering into contracts.
ATTY. BARRY HAWKINS: I think those are all valid concerns. And, frankly, if there was a major concern expressed by others that they needed a longer ramp up period to accommodate their contracts, I would not have a problem, personally, with an extended starting date delaying the effective date even further than October 1, 2008.
I have not considered that because the act has been around and was considered and considered by this committee in 2001. It's certainly been talked about for a long period of time.
It's now been adopted in 14 other jurisdictions in the United States, and it's pending in 15 others. So there's been a lot of publicity about it, and much of it is not new, departing law.
And much of it is, for example, required by existing case law. The question was brought up earlier on punitive damages. There's a number of people who have expressed concern about punitive damages being allowed in the statute.
It's not allowed by the Revised Uniform Arbitration Act. What we're saying is that existing case law already provides, in Connecticut and elsewhere, that if you have the right to punitive damages for this claim, if the matter were tried in court, then the same power is extended to the arbitrator to award punitive damages in the arbitration.
The act only goes to say that if you are going to have punitive damages, it puts some procedural safeguard saying that you have to articulate the rationale, the reasons for it and give an opinion as to the purposes and the analogies of the analogy to existing case law that allows the power for the awarding of that punitive damage.
So it's putting procedural safeguards around a substantive right that's been created by case law, not by statutory law.
SEN. MCDONALD: And I appreciate that. But the point that you just made that this legislation has been kicking around this building longer than I have been serving in it sort of underscores the notion that something is inhibiting its passage.
And, in truth, most uniform laws tend to fly beneath the radar screen and get passed in this building. So something is, and I'm not certain what it is, but something is holding it up.
And I'm just trying to figure out, if we were to make it completely prospective, if that might appease whatever concerns are out there.
ATTY. BARRY HAWKINS: Yeah. And I really, truthfully believe, and having been involved in the process, at least in three legislative sessions, understood that the rationale, this act came out of this committee with a joint favorable in 2001.
It ended up having a problem because it was misunderstood by the administration as threatening existing arbitration contracts for labor contracts and with respect to existing statutory laws providing for procedures for statutory arbitration.
In fact, the original Arbitration Act does not provide for its coverage of those statutorily mandated laws. That problem was actually a misunderstanding, and it caused it to go down to defeat in 2001.
It's had other issues, I think, of the same category. For example, there's opposition that's been filed today, and one of the Members of the Committee brought it up, that the consumer group was concerned that adhesion contracts are not covered in this act and not prohibited and limited in this act.
That's absolutely right. It has nothing to do with setting forth the ground rules for how your arbitrate. That is a statutory field which is already covered by preemption.
The FAA would actually prohibit us from identifying arbitral contracts as being something different, and if we provided for a carve out for consumer issues within the context of this act, it would, in all certainty, be struck down by the courts.
Alabama passed a statue, which provided that any contract having arbitration in it had to be flagged and put the words arbitration on the front of the contract in red, white, in large, capital letters.
That statute was challenged by a Connecticut corporation, Doctors Associates, the franchisor for Subway, and the U.S. Supreme Court, in the case of Doctor Associates v Catori, held in 1996 that the FAA actually prohibits any state from enacting a statute which specifies and carves out and treats arbitration contracts differently from other types of contracts.
So that it was struck down because of that attempted carve out, which is a very minimal carve out, to put the warning flags on the front page of the contract.
Any attempt to carve out adhesion contracts and consumer contracts in an arbitration context, it was not applicable to all forms of contracts, would be in violation of the FAA, the Federal Arbitration Act.
And since the Supreme Court has ruled that that act already governs the field and preempts the field, each state is prohibited from doing that type of a carve out that would apply to contracts for arbitration.
There's a way around it. That's to either, as Professor Mazadoorian said, the voluntary action of the arbitrarial providers, the AAA and the National Arbitration Forum already refused to enforce and to carry out arbitration for unfair contracts, or Congress could modify the FAA and say that it's perfectly okay to modify it and put it in as a matter of federal law that we prohibit adhesion contracts.
But I think a lot of the opposition to the Arbitration Act has been a misunderstanding that this is something that can be controlled or addressed in the context of the Arbitration Act, when what we're really doing is talking about the mechanics and the procedures and the law governing the arbitration, once you are already there.
SEN. MCDONALD: Thank you. Are there questions? Representative Wright.
REP. WRIGHT: Thank you, Mr. Chairman. And thank you, Attorney Hawkins, for appearing here today. There is some written testimony filed, and you probably haven't had a chance to see it, on behalf of the Insurance Association of Connecticut and the CBIA.
To the general effect that this revised Uniform Arbitration Act, they claim, actually, undermines the public policy that underlies, you know, the consensual and contractual arbitrations with the goal of promoting cost-effective and speedy resolutions of disputes, by, in fact, transforming arbitrations, essentially, into full-blown litigation and arbitrators into judges with broad powers and unlimited discretions.
And they also, one of them, at least, makes the point that the act, the proposed revised act also would curtail the flexibility of the parties to frame this scope of the arbitration.
And I wonder if you could comment on that. And I know you probably haven't seen that testimony, and I don't know if you are aware of that issue.
ATTY. BARRY HAWKINS: I've not seen it, and I'm surprised to hear of the source of, if I heard you correctly, CVIA. I have certainly heard from the insurance industry association in the past.
We had had meetings with the Insurance Association, nationally, thought we had worked through and certainly had them agree, on the national level, that they were withdrawing that opposition because, in fact, it does just the opposite of what you just stated.
It provides for freedom of contract to frame the arbitration exactly as the contracting parties would like it.
If they want to have litigation-like qualities, if they want to have, if you're having an arbitration over a $30 million building construction, and you want to have the ability to have expanded discovery, take depositions of the architect, that will add to the cost.
That will make it more complex. That will make it more like litigation. But if the parties want to do it, the act provides them the framework to do it.
On the other hand, if you're talking about cheap, simple, effective, quick arbitration, no discovery, single arbitrator, no written record, no reasons to be advanced or to be recorded for the reason, the arbitrator just makes his decision as is done in many simple AAA administered contracts, that can be done so that you can tailor the arbitration to fit the scope of the model that you have in front of.
If you've got a bet-the-ranch litigation, you can expand it to look more like litigation. If you have a very simple arbitration, you can make it simple, fast, and effective.
REP. WRIGHT: Thank you. And if I may, just one more, brief question. If I understood your testimony, it was in an essence that the revising form of arbitration act, essentially, sort of plugs some holes that existed from in the Uniform Arbitration Act, and also, essentially, clarifies and codifies any body of law that has developed in arbitration over the last 50 or so years, and conform our state's Uniform Arbitration Act to those developments.
Is my understanding of your testimony correct, essentially correct, in that regard? And, if there are significant departures or if the revisited proposed revised act, you know, creates, carves out new, substantive law, could you just highlight those for us?
ATTY. BARRY HAWKINS: Yeah. I'd be glad to. I think, one by one, in Mr. Pavetti's statement, which is in the written testimony, he goes through the sections of the act.
But I'll give you an example. There is a new provision for a balancing to be done by the arbitrator, to decide where the mandatory joinder of parties.
We're not allowed, under the original Uniform Arbitration Act, now theoretically possible, the arbitrator can balance the equities and decide whether, in fairness to all the parties, if there's no prohibition against the mandatory joinder of another party to the arbitration, the arbitrator can decide, in the interest of justice, that rather than having parallel arbitrations going on between the architect and the contractor and the contractor and the owner, that all three parties should be brought into one arbitration.
If the parties are against that, they can contract, from the beginning, to prohibit it. That will be honored.
But if they don't prohibit it, and the arbitrator wants and thinks that it would be in the interest of justice in saving costs and efficiency and making sure that you had a consistent result, the arbitrator has the power to force the two arbitrations to be combined into a single arbitration, which would be greater efficiency and greater cost saving.
That's a completely new and different provision that has no counterpart in the Uniform Arbitration Act. But, again, it can be prohibited.
It can be trumped by the decision of the parties when they enter their contract, and it would not be enforced unless the arbitrator thought that it was in the interest of justice to do so.
REP. WRIGHT: Thank you very much. Thank you, Mr. Chairman.
SEN. MCDONALD: Thank you. Is there anything further? If not, thank you very much.
ATTY. BARRY HAWKINS: You're very welcome.
SEN. MCDONALD: Thank you. Next is Deb Baudry, followed by Steven Thornquist. Ms. Baudry, if you could just give me one second. I wanted to just get a sense of how many people who had signed up are still here. Mr. Thornquist, or Dr. Thornquist, is still here. Kenneth Bunge?
UNIDENTIFIED SPEAKER: [inaudible - microphone not on]
SEN. MCDONALD: Okay.
UNIDENTIFIED SPEAKER: [inaudible - microphone not on]
SEN. MCDONALD: Jessica Branson? No. Susan Aranoff? Lisa Holden? Attorney Laurey? Jean Rexford.
UNIDENTIFIED SPEAKER: [inaudible - microphone not on]
SEN. MCDONALD: Morgan McGinley.
UNIDENTIFIED SPEAKER: [inaudible - microphone not on]
SEN. MCDONALD: Matthew Levy? Catherine Williams? Suzanne Walsh? Rafie Podolsky.
UNIDENTIFIED SPEAKER: [inaudible - microphone not on]
SEN. MCDONALD: Okay. Thomas Wilcuty?
UNIDENTIFIED SPEAKER: [inaudible - microphone not on]
SEN. MCDONALD: Allison Sylvia? Kathy Osten?
UNIDENTIFIED SPEAKER: She's gone.
SEN. MCDONALD: Chris Powell? Dr. Beth Rocco?
UNIDENTIFIED SPEAKER: [inaudible - microphone not on]
SEN. MCDONALD: Mike Riley may be somewhere else. Kevin Hennessy may be somewhere else. Eric Ellison?
ERIC ELLISON: Here.
SEN. MCDONALD: And that is it. Obviously, if you signed up, I just wanted to get a sense of how many people were left here to speak. Thank you for your patience, Ma'am.
DEB BAUDRY: Thank you. Good afternoon, Senator McDonald, Representative Lawlor and Members of the Committee. My name is Debbie Baudry. I'm the Family Violence Victim Advocate Supervisor for the Domestic Violence Crisis Center of Stamford/Norwalk.
I am here today to request your support, via House Bill 5722, to fund a domestic violence docket advocate in the Norwalk court.
As the Family Violence Victim Advocate Supervisor, I am responsible for overseeing the day-to-day activities of the family violence victim advocates in the both the Norwalk and Stamford criminal courts.
The advocates act as the liaison between victims of domestic violence, whose abusive partners have been arrested, and other court personnel.
As such, the advocates gather information from the victim about the abuse in their lives, and they provide advocacy counseling and support services throughout the court case.
Both the Stamford and Norwalk courts have been identified as docket courts, yet only the Stamford court has been resourced with a specialized docket advocate.
In Norwalk, all cases are referred to the domestic violence docket, where last year's arraignment caseload was double that of the Stamford court.
To effectively safety plan with a victim, we need to have time available. But having too many cases and not enough staff is detrimental to the quality of services that could be available to the victim.
We would like to provide the same level of services in the Norwalk court as we do in the Stamford docket court. We have raised private funds to begin the process, but cannot guarantee that this funding will continue.
It is my understanding that funding has been put into the Governor's budget to support a docket advocate in the Norwalk, New London, and New Britain courts.
Today, I am asking you to take the necessary legislative action to ensure that we are able to advocate for victims whose abusers are part of a specialized docket court in Norwalk. Thank you for your time.
SEN. MCDONALD: And thank you very much for your patience this afternoon. Are there any questions?
Obviously, we've heard a number of people testifying on this, and I think many of those questions have been answered. But I certainly appreciate you spending the time with us this afternoon.
DEB BAUDRY: Okay. Thank you.
SEN. MCDONALD: Dr. Thornquist.
DR. STEVEN THORNQUIST: Thank you, Senator. Good afternoon, although it's closer to evening, I believe, now. Senator McDonald, Representative Lawlor, and the other distinguished Members of the Committee, for the record, my name is Steven Thornquist.
I'm a board-certified ophthalmologist, practicing in Trumbull, Connecticut, and I'm here as President of the Connecticut Society of Eye Physicians, to support Senate Bill 483, AN ACT PROMOTING PATIENT SAFETY AND ACCESS TO PROVIDER INFORMATION BY EXTENDING THE STATE PHYSICIAN PROFILE AND RELATED MALPRACTICE REPORTING REQUIREMENTS TO CERTAIN OTHER HEALTHCARE PROVIDERS.
A catchy title, indeed. The delivery of healthcare has become increasingly complex and challenging in recent years. And in a quest for efficiency, the role played by many ancillary healthcare professionals has been expanded.
During this same period, there has been a strong movement to improve quality assurance and to measure outcomes.
Several years ago, to help achieve these goals, Connecticut sought to standardize its consumer information in regard to medical liability claims, through a databank in the Department of Public Health.
This reporting requirement, unfortunately, only gave a limited snapshot of healthcare providers, who are mandated to carry liability insurance in statue because it focused only on physicians.
Therefore, it did not provide consumers with a complete picture of the multiple providers who carry professional and liability insurance, and may have pending professional liability issues.
The Department of Public Health was further directed to publish physician-specific data, including training, practice location and malpractice history on the website.
I would like to stress that malpractice suits are not a valid proxy for quality of care, but to the extent that the public views them as such, and since some providers must provide this information, they are important data for consumers in choosing their healthcare provider.
Senate Bill 483 seeks to improve the current system by providing the people of Connecticut with a more complete view of all healthcare providers who may have settled or lost a medical liability case, by using the databank already established.
It seeks to increase transparency and to promote consumer choices, by making all healthcare provider profiles available to the public for consideration.
Senate Bill 483 eliminates the false sense of security that could exist when a consumer looks up a non-physician in the databank, and assumes there are no claims because they do not see the provider's name listed in the bank.
In fact, the name of their provider may not appear, simply because the state has not required reporting of any of those liability claims against those non-M.D.s.
As we go forward, we must remain committed to quality healthcare and efficiency. As the role played by ancillary healthcare providers increases, so must the responsibility.
The people of Connecticut face ever-increasing costs, and must have all the information they can get to make decisions regarding their healthcare.
This includes information about both physicians and ancillary providers, and information about how their healthcare dollars are being spent.
The Connecticut Society of Eye Physicians, the Connecticut State Medical Society and other specialty physician societies strongly support this bill as a consumer protection issue and as a fairness issue for all providers in the healthcare system. Thank you.
SEN. MCDONALD: Thank you very much, Doctor. Are there any questions from Members of the Committee? If not, I appreciate your time.
DR. STEVEN THORNQUIST: Thank you.
ATTY. KENNETH BUNGE: Bunge.
SEN. MCDONALD: Next is Kenneth Bunge. Bunge. I apologize.
ATTY. KENNETH BUNGE: That's fine. It's done many times. Good afternoon, Senator McDonald and Representative Lawlor, and other distinguished Members of the Committee.
I'm here today to discussed Raised Senate Bill 321, AN ACT CONCERNING THE UNAUTHORIZED PRACTICE OF LAW, and, particularly, Paragraph B of that proposed legislation.
I am an attorney, admitted in Connecticut, and I am the President of the Connecticut Chapter of the Association of Corporate Counsel, or ACC.
ACC is the bar association for in-house lawyers, with approximately 23,000 members in 75 countries, employed by 10,000 corporations and other private-sector organizations.
ACC currently has about 510 members in the State of Connecticut, representing more than 250 Connecticut companies. I am speaking on behalf of both my chapter and the Fairfield chapter, as well.
In addition, we appreciate the hard work done by all involved in Connecticut to establish an authorized house counsel program for in-house attorneys, working but not admitted in Connecticut.
While it may seem appropriate to address the penalties for unauthorized practice, in light of these new rules, criminal penalties, we feel, are not necessary for in-house lawyers, as a matter of public policy.
The current disciplinary rules in Connecticut and in the jurisdiction where the attorneys are licensed are fully competent and sufficient to address unauthorized practice of law issues for in-house counsel.
In addition, the only client harmed when an employed lawyer does not live up to his professional or her professional obligations is the employer client who bears the expense of having paid that person's salary and the task of dismissing them.
These lawyers are no danger to the public, and we should not seek to criminalize their behavior. I'd like to spend a few minutes talking about the new authorized house-counsel rules, effective January 1 of 2008, barely two months old.
Currently, attorneys applying for that program have until June 30 to submit their applications to qualify for the program. That would be one day before the effective date of the change in the criminal law as well.
There are some significant issues with regard to the new authorized house counsel rule that I think we have to work on, and it requires additional refinement.
A couple of examples. It now appears under the rule that pro bono work is not permitted for the people under this program, for the attorneys. As we all know, pro bono services are a professional responsibility of all attorneys.
Many corporations here in Connecticut have established pro bono arrangements to facilitate the fulfillment of these obligations by their attorneys.
An attorney approved as an authorized house counsel could, potentially, be subject to the criminal penalties for performing pro bono services in the state, in a fully competent manner.
Another issue, and I would certainly entertain questions about this issue. I've had some experience with this, and a very important issue, the multinational corporations in Connecticut, is the status of non-U.S. attorneys admitted in their home countries, but are ineligible, as it currently stands, for the authorized house-counsel program.
More and more companies are truly becoming global operations. A non-U.S. attorney employed by a company, who comes to Connecticut for any period of time and renders legal counsel to the client company, would seem to be at risk.
Not allowing such attorneys to be eligible for the program serves no Connecticut interest, an unfairly restricts companies needing their services.
I might add also that others ineligible are non-U.S. attorneys who come to the United States and obtain an LLM degree, masters of law degree, in a U.S. law school, approved by the ABA, and admitted in another jurisdiction.
These attorneys are not eligible for the program either. In addition, an attorney from a common law country, such as Canada, Great Britain, or Australia, who comes to the United States and is eligible, in some jurisdictions, to sit for and take the bar exam, and becomes an admitted U.S. attorney after that, is also ineligible under the current Connecticut rules.
And I think we need to take a look at that. Finally, we need to consider attorneys who should fully qualify for the authorized house-counsel program, but may be unable to complete their applications timely, if at all.
One category that is near and dear to me are applicants that are Vietnam-era veterans, who are unable, currently, to obtain their service records because the records are more than 30 years old.
The application requires their service records, and, yet, I hope they would not be at criminal risk simply because their service records cannot be located.
In conclusion, we respectfully urge the committee to reconsider this bill, in light of our position, or at least until an adequate period of time has evolved, to work through these questions I have mentioned concerning the new authorized house-counsel rules. Thank you for your time, and I'd be wiling to answer any questions.
SEN. MCDONALD: Well, and thank you for your testimony. Were you here when Mr. Costas provided his testimony?
ATTY. KENNETH BUNGE: Yes, Sir. I was.
SEN. MCDONALD: Did you take an opportunity to meet with him out in the hall and see if you can reconcile any differences you may have on the legislation?
ATTY. KENNETH BUNGE: I know him well, and I am hoping we can. I really do. And I think he, certainly, feels that way as well.
SEN. MCDONALD: Okay. Well, you know, you bring up some very good issues, important issues, I should say. And he seemed to acknowledge the existence of some of them.
So you asked that there be enough time to work through these issues. I would probably suggest that about by the first week in May, might be a good time to have it finished.
Because it is going to, likely, be voted on here. And so if you can work through any problems with the CVA, that would be preferable.
ATTY. KENNETH BUNGE: Okay. Thank you. We certainly will.
SEN. MCDONALD: Thank you. Are there any questions? If not, thank you for your time.
ATTY. KENNETH BUNGE: Thank you.
SEN. MCDONALD: Just, I will read through the names one more time, in case people have come back into the room. Jessica Branson? If not, Susan Aranoff.
UNIDENTIFIED SPEAKER: [inaudible - microphone not on]
SEN. MCDONALD: Good afternoon.
ATTY. SUSAN ARANOFF: Good afternoon, evening. I had to remember which issue I came here for, there were so many. My name is Susan Aranoff. I'm a staff attorney for Connecticut Legal Rights Project.
We're a nonprofit advocacy organization that provides advocacy and other legal services to indigent adults living with psychiatric disabilities.
And I'm here today to support House Bill 5534, AN ACT PROHIBITING DISCRIMINATION ON THE BASIS OF MENTAL DISABILITY IN STATE CONTRACTS.
And my understanding of this bill is that it's an attempt to correct an inadvertent omission from a piece of legislation that was passed last year, that added kind of one of those long laundry lists of basis for discrimination that would be prohibited in certain kinds of state contracts.
And mental disability was omitted. And you can do kind of a [inaudible] reading of the statutes, and determine that really mental disability is still protected.
But whenever you see a list like that, and something's left off, a lot of people interpret statutes to think that it was meant, left off for a reason.
So we strongly support making it crystal clear that mental disability is not a permissible basis to discriminate on the basis of, and we wholeheartedly support House Bill 5534.
SEN. MCDONALD: Thank you. Are there any questions? Let me just ask one brief one. Is there any, I guess this would apply for physical disability as well.
But was there any universally recognized definition for mental disability that would fall within the scope of this language?
ATTY. SUSAN ARANOFF: No. And that's actually one of the problems with all the languages.
SEN. MCDONALD: I saw you cringe.
ATTY. SUSAN ARANOFF: Yeah. Did you catch that? I should never play poker, I'm told. Yeah, and if you think about just the name changes some of the state agencies have gone through, you know, mental retardation, developmental disabilities, psychiatric disabilities, etc., even determining what a mental disability is could take, you know, five days.
Because some people would include dementias, and some people wouldn't and brain injuries, so no. To answer your question, no.
SEN. MCDONALD: Well, in trying to create some clear language that would provide guidance to the public about what was illegal discrimination, how would people have any clear understanding of what would fall within the scope of that term, if we haven't defined it?
ATTY. SUSAN ARANOFF: You know what? I honestly have to say, at this point in the day, I don't know if I could give you a coherent answer to that. But I would say that there are definitions in various other places in Connecticut statutes.
For instance, in determining eligibility for different agency services, it's pretty well delineated, you know, what a cognitive impairment is and what the onset of it is, distinguishing, you know, certain kinds of mental illnesses, autism [inaudible] I mean, there are some places where this stuff would be defined.
What Connecticut has done, both in its Human Rights Commission statutes and in other places is link physical and mental together, physical and mental disability together, and then you don't really have to determine whether or not a brain injury is a mental disability or a physical disability because it wouldn't' matter.
They'd both be together, and that's kind of the more common form in Connecticut statutes. But I could get you something more coherent.
SEN. MCDONALD: Yeah. Okay. I mean, we don't need to resolve this tonight, but.
ATTY. SUSAN ARANOFF: And part of the issue, honestly, is that the programs are very good at defining themselves in ways so that it's clear who is eligible and who is not eligible.
And so I could just look at some of the agency's own definitions, you know, for DMR, you're, if you have an IQ under a certain number, and you had a diagnosis at a certain age, then you'd be in the DMR world, not the mental illness world.
SEN. MCDONALD: Okay. If you could give it some more thought. I mean, my only reason for asking is that this is, basically, within the scope of our contracting language, right?
ATTY. SUSAN ARANOFF: Yes.
SEN. MCDONALD: So that, at least as I read the other protected classifications, the classification itself probably wouldn't have any bearing on the ability of the contractor to fulfill the terms of the contract.
And, certainly, some of the more profound mental disabilities could have a limiting ability on the ability to actually perform a contract, right?
ATTY. SUSAN ARANOFF: Right.
SEN. MCDONALD: Certainly, there would be, mild depression probably wouldn't'. But at the other end of the spectrum, I'm trying to figure out how we could possibly--
ATTY. SUSAN ARANOFF: Oh, I see. I get it.
SEN. MCDONALD: If you were completely debilitated and couldn't function, as a result of a mental disability, that could have an impact on the ability of the contractor to fulfill the terms of the contract.
ATTY. SUSAN ARANOFF: Right. The general paradigm there, and it's true with physical disabilities too, any disabilities, that you have to be able to be able to perform the job with or without a reasonable accommodation.
SEN. MCDONALD: Accommodation, right.
ATTY. SUSAN ARANOFF: So if there's some, you know, aspect of the job that's an essential job function that you weren't able to do with our without, then this wouldn't apply.
And there is a way that that provision is connected to those other provisions, and I could draw you that map because we can [inaudible] drawing it.
SEN. MCDONALD: Well, we don't need to do it now. But when you go back and have an opportunity to mull it over, just consider how all of those pieces would fit together. Because I actually think, if we are to do this, we need to do more than just this statute to make it work.
ATTY. SUSAN ARANOFF: Yeah. Okay. I didn't understand that that was the gist of your question. That would be an easier one to answer, so I'd be happy to do that.
SEN. MCDONALD: Well, it's both. I mean, in trying to define it and also how it would integrate with the rest of our statutory structures, okay? Great.
ATTY. SUSAN ARANOFF: And should I just e-mail that to one of your [inaudible]?
SEN. MCDONALD: You can get it to our committee staff, and they'll be happy to make sure that Members of the Committee get it.
ATTY. SUSAN ARANOFF: Okay. Great. Thanks.
SEN. MCDONALD: All right. Thank you. Next was Lisa Holden. I don't see her here. So Houston Putnam Laurey, followed by Jean Rexford.
HOUSTON PUTNAM LAUREY: Thank you, Mr. Chairman. My name is Houston Laurey. Today, I appear on behalf of the Connecticut Bar Association's 80R Section, in support of House Bill 5531, AN ACT ADOPTING THE REVISED UNIFORM ARBITRATION ACT.
I have written testimony, which I request be incorporated into the record. I won't read it. The recusal progressively develops and codifies laws. And one of those was the original Uniform Arbitration Act.
Connecticut did not adopt that act. I know I've had fights with people about it because we adopted an act that predates it. So unless we're going to say we're [inaudible] there's actually a slightly different version.
What has happened here is this is a codification and a development that takes existing case law in Connecticut and other places, and it sets it so that people can follow it in an easier fashion.
It doesn't change a number of provisions that I would consider to be key. Arbitration always requires an agreement to arbitrate, and, essentially, what this says is, like any other arbitration act, they're specifically enforceable.
Used to be, an agreement to arbitrate was not specifically enforceable. All you could sue for damages was after the fact. I'm sorry. I didn't arbitrate. Okay. What are your damages? Nothing.
So, in the '20s, that was decided that the common law suspicion of being ousted of its jurisdiction was no longer appropriate, and arbitration was to be part of the law of the land.
This act also allows the court to appoint arbitrators if the parties method of appointing arbitration, the arbitrators fails. So if you come and you say I asked the other side to do it.
They won't do it. We didn't pick any rules. The court then can say, hi. I will do it. And this is the person I pick, just like the Federal Arbitration Act.
You asked Mr. Hawkins if all arbitration clauses, in fact, are covered by this. My short answer is no, although his answer was to the contrary.
We do have a fairly, and, in fact, actually, more comprehensive [inaudible] in Title 50A, which covers international commercial contracts.
The Federal Arbitration Act comes in three chapters, Chapter 1, which is domestic, Chapter 2, which falls under the 1958 New York Convention, and Chapter 3, which covers the '75 Panama Convention.
And I understand that concerns will be raised in a little bit about how you select an arbitration organization to administer your arbitration and how you select arbitrators, I believe that's Mr. Wolcott's testimony.
I don't think you can vary from either the Federal Arbitration Act or, in specific, the 1975 Panama Convention that says if the parties don't pick an arbitration administering facility that is deemed to be the International Commercial Arbitration Commission established by the OAS.
I'd be happy to answer any questions, and I would just love to go on, but I've used up my time.
SEN. MCDONALD: Well, I thank you for your testimony and for acknowledging the time. But, you know, this issue is a perennial one around here, and, hopefully, we'll be able to work through these issues this year. And I certainly appreciate your testimony.
HOUSTON PUTNAM LAUREY: If there's anything I can do to assist, I would be happy to. If you refer it to the Law Review Commission, I would be happy to assist them as well.
SEN. MCDONALD: Thank you very much. Are there any questions? Thanks for your time.
HOUSTON PUTNAM LAUREY: Thank you.
SEN. MCDONALD: Jean Rexford, followed by Matthew Levy.
JEAN REXFORD: Good evening, Senator McDonald and Representative Lawlor and Committee Members. I will be very brief. I, too, am here tonight in support of Senate Bill 483, AN ACT PROMOTING PATIENT SAFETY AND ACCESS TO PROVIDER INFORMATION BY EXTENDING THE STATE PHYSICIAN PROFILE TO CERTAIN OTHER HEALTHCARE PROVIDERS.
There is an increase in the numbers of healthcare consumers seeking alternatives to our current delivery system. High co pays, health savings accounts and high deductibles, medical savings accounts are just a few of the reasons that individuals are looking at alternatives to the traditional medical establishment.
Many patients go to the DPH website seeking information, and, yet, it is incomplete. We need to include all healthcare providers on that website.
There have been important omissions, such as information on chiropractors. Patients might think that because there is no information that there are no safety issues and no malpractice claims against the provider.
Passing this bill, which would include these healthcare providers, becomes more critical as these alternative healthcare providers push to increase their scope and complexity of the services they want to provide for patients.
Healthcare providers who carry medical liability insurance should have the same standardized reporting requirements, thereby providing the public with critical information that would improve patient safety and quality in Connecticut.
SEN. MCDONALD: Well, thanks for your testimony. I've been here for, I think, almost every speaker. I haven't actually speak against this proposal yet.
JEAN REXFORD: It's good news.
SEN. MCDONALD: Have you heard whether anybody is [Gap in testimony. Changing from Tape 3B to Tape 4A.]
JEAN REXFORD: --sounds like good reasonable, sane bill.
SEN. MCDONALD: We'll have one this year. Are there any questions? Thanks very much.
JEAN REXFORD: Thank you.
SEN. MCDONALD: Next is Matthew Levy. Good afternoon, Sir.
MATTHEW LEVY: Good afternoon.
SEN. MCDONALD: Can you pull the microphone toward you? Thank you.
MATTHEW LEVY: Good afternoon, Senator McDonald, Representative Lawlor, and distinguished Members of the Judiciary Committee. My name is Matthew Levy, and I am testifying in support of Senate Bill 483, which is an act promoting patient safety and the availability of information.
I came up here today to testify in support of this bill because of the importance of this issue.
In 2002, my mother was severely injured by chiropractic manipulation. She went a chiropractor for a simple shoulder pain, and we almost lost her forever.
The chiropractor had torn an artery in her neck, which resulted in her having a stroke. I will never forget the day when I was in the hospital with my dad and my brother and we had to say goodbye to my mom as she wheeled away into surgery.
I was taken home by my mom's best friend. On the way, I asked Lori if my mom was going to be all right. When she started to cry, it hit me that I may never see my mom alive again. I will never forget that day.
For the past three and a half years, I have witnessed the emotional turmoil that this issue has caused so many other people, all because of a simple chiropractic adjustment. All these stories that I've personally read said the same thing.
They had gone to a chiropractor for a simple ailment that could have probably diminished with time, but instead they thought they would try chiropractic because they have read all their ads saying that they were safe and that they could help with all sorts of pains and afflictions.
They had no idea that chiropractic could forever change their lives by potentially damaging them or even killing them.
A simple chiropractic adjustment has killed people, and I have personally read their stories and have seen some of the death certificates attributing their unnecessary deaths to a chiropractic manipulation.
This bill is so important because of the affect computers had on the modern world. As a 16-year-old, I have grown up with the Internet being the most valuable resource for information, and most everyone of all ages is shifting sure to this technology.
I know that if my generation has a question about anything, they go straight to the Internet to find the answers, and they should be provided there.
The way the physician's profile is set up now is that it claims to include all licensed physicians. Most people will automatically assume that chiropractors are included in this list since they are considered physicians by the State of Connecticut.
When they don't show up on the list is the immediate assumption that chiropractors have no need to be on the list and that they are safe. I have learned that this is not the truth.
I have personally talked to many victims who were left paralyzed by a chiropractic adjustment. The possibility of injury needs to be made public.
And I believe that one of the first and most significant steps would be to include the profession on the Department of Public Health's website of physicians profile.
We all have a right to know the kind of information regarding any and all healthcare providers. We just need to be provided the access to it, especially when there's a major risk.
Before three and a half years ago, I did not know that to become a chiropractor, you only needed 2.0 to a 2.5 grade point average, nor did I know that chiropractors have no medical training in a hospital, nor did I know that chiropractors can seriously injure anyone.
This information should be provided, as it would in the physicians profile under this bill.
The greater importance of the Internet today makes this bill vital, as there is a great need for all information to be available online. People will be able to use this information to make their own educate decisions on what risks are too much and then hopefully be able to avoid any unnecessary harm.
In a society where a coffee cup says, caution, hot, may cause burns, I cannot see any plausible objection to this bill. Please support Senate Bill 483. Thank you.
SEN. MCDONALD: Thanks, Matt. That last point was a great one. You know, it is so true. I mean, the people who are seeking out chiropractors have very few tools at their disposal to understand what's at stake and, frankly, what the potential risks are.
And I just want to congratulate you on your eloquence. You're 16?
MATTHEW LEVY: Yeah.
SEN. MCDONALD: Very impressive.
MATTHEW LEVY: Thank you.
SEN. MCDONALD: And very personal, and I appreciate you sharing it with us. How is your mother doing?
MATTHEW LEVY: She's fine.
SEN. MCDONALD: Okay.
MATTHEW LEVY: She's gotten better with a lot of work.
SEN. MCDONALD: With a lot of, and you have been here most of the day and heard a lot of the testimony.
MATTHEW LEVY: Yes.
SEN. MCDONALD: Did your mom have a lot of physical therapy as well?
MATTHEW LEVY: Oh, yeah. A couple years.
SEN. MCDONALD: Right. And your point about the Internet, you know, one of the people who testified indicated that her problems with a chiropractor date back 14 years.
And if my math is correct, it's actually right around the time that the Internet was getting rolled out, so it may not have helped as much back then.
MATTHEW LEVY: But in the future.
SEN. MCDONALD: But you're absolutely right. And you wouldn't have any reason to know this, I suspect, but we are, on a regular basis, considering legislation that requires government to put more information on the Internet on a whole variety of subjects, because you're right, it's where people go for their main sources of information now.
And if it's not here, it leads people into a false sense of complete knowledge, and that's not true. So I want to thank you for coming today and for testifying before the Committee.
MATTHEW LEVY: Than you.
SEN. MCDONALD: Are there any questions from Members of the Committee? Representative McMahon.
REP. MCMAHON: Just wondering, where do you go to school?
MATTHEW LEVY: Hamden Hall.
REP. MCMAHON: Hamden Hall. I would love to talk to your teachers and tell them what a great job you did and what an example, what a great example you were for yourself, and I hope your fellow classmates care about this.
MATTHEW LEVY: Thank you.
SEN. MCDONALD: Thank you. Thanks for your testimony. Next is Catherine Williams. Is she here? Okay. Suzanne Walsh, followed by Rafie Podolsky, who always has the most unbelievable timing. He walks in just as his name is about to be called.
SUZANNE WALSH: Thank you, Senator McDonald and Members of the Judiciary Committee. I appreciate the opportunity to appear before your Committee and comment on Raised Senate Bill 508, which is the ACT ADOPTING THE CONNECTICUT UNIFORM TRUST CODE AND ESTABLISHING AN ALTERNATIVE RULE AGAINST PERPETUITIES. That's quite a mouthful.
My name is Suzanne Brown Walsh. I'm a principal at Cummings and Lockwood in West Hartford. I current chair the Connecticut Bar Association's estates and probate section, and I also have served since 2005 as one of Connecticut's eight uniform laws commissioners.
So on behalf of the estates and probates section of the Bar and the National Conference of Commissioners on Uniform State Laws, I request the Committee act favorably on Senate Bill 508, and I will make my comments brief. I've submitted lengthy written testimony that I won't repeat.
Twenty jurisdictions have now enacted the Uniform Trust Code, 22 states have completely abolished the rule against perpetuities. We feel that we need this bill to preserve trust business in Connecticut and perhaps even attract some new dollars in trust business into the state.
I've seen a lot of empirical studies suggesting that when you have a combination bill like this, you can actually bring some dollars into your state because of the abolishment, abolition of the rule against perpetuities.
The bill benefits pets for the first time, it expressly authorizes the use of pet trusts, it benefits charities, and I know the Attorney General testified to that effect.
It actually does benefit the probate courts. It benefits trust set lors. It also benefits trust beneficiaries because it, for the first time, will provide express rules on when they might be entitled to notice the existence of a trust, the identity of a trustee, and information about the trust. Whereas, under our current statutes, there are no such provisions.
Here I would respectfully disagree with Judge Lawlor, and I would suggest that this bill fairly balances the interests of trust set lors and beneficiaries, and I've already initiated and have a longstanding dialogue with that office.
I can say that there's a lot of opposition among many groups to the any expansion of the notice provisions in our version of the trust code, as Judge Lawlor had suggested. And of course, I will speak to him about that.
This is a product of much negotiation and compromise. We have worked very carefully with the Connecticut Bankers Association, which also submitted testimony in support of the bill, and we are completely in agreement with them on what form the bill should take, and we will submit that it's time to enact the trust code in Connecticut.
I'd also quickly like to direct your attention to my fellow Uniform Law Commission, David Biklen's written testimony in support or Raise House Bill 5535, AN ACT CONCERNING THE UNIFORM REAL PROPERTY ELECTRONIC RECORDING ACT.
When I came in, I believe the Town Clerks were testifying in support of that. He wanted me to mention that he has submitted written remarks and that the Chicago NCCUSL office has submitted some background material and that he'd be happy to take any questions about it.
And I, of course, appreciate your time, and I'd be happy to always, at any time, answer questions about the trust code or the rule.
SEN. MCDONALD: And thanks for your testimony. There are a couple of uniform laws that have picked up opposition along the way, and this is one of them.
I'm glad to hear that you've reconciled your differences of opinions with the bankers over time, and now it sounds like you have some work to do with the probate courts to iron out some details, but it certainly indicates that we've made some progress in trying to educate and resolve any outstanding issues on the legislation.
Let me just ask you, with respect to the pets issue that you spoke about. If I recall correctly, that was a sticking point, was it last year?
SUZANNE WALSH: I don't know that it was a sticking point. I recall, you know, we've always had this very popular provision in the trust code, and I think, I want to say the Humane Society, I may be misspeaking, had put in their own bill based on it--
SEN. MCDONALD: That's okay--
SUZANNE WALSH: --and it was not enacted. So I think I can--
SEN. MCDONALD: That's because it was a sticking point.
SUZANNE WALSH: I think it was their language and their far-reaching and different nature of their bill. This one is fairly innocuous and quite brief. If anyone has a problem with it, I'd be happy to address it, but I don't know of any problems in actually any state with the trust code pet trust provisions, which are very limited.
SEN. MCDONALD: Just briefly, what does it do?
SUZANNE WALSH: Basically, a pet trust, as you know, is an honorary one. Since you don't have a human beneficiary, you have to rely on the trustee to be honorable and enforce your trust.
This would validate them and say that for a limited period of time, you could place your money in trust for a pet and it wouldn't simply be honorary. There would actually be a person designated to enforce the pet's interests, period.
SEN. MCDONALD: And the individual trustee would be selected by whom?
SUZANNE WALSH: The set lor.
SEN. MCDONALD: Okay.
SUZANNE WALSH: It would not be limited to an organization or a charitable organization that benefits pets. I believe that was the prior issue.
SEN. MCDONALD: I refer to that as a sticking point.
SUZANNE WALSH: Yes.
SEN. MCDONALD: I like your version much better.
SUZANNE WALSH: It's very clean and simple. You could designate the Human Society, if they had trust powers, and you could certainly be free to do that, but you could never designate your neighbor.
You know, many people leave very modest amounts of money to care for a pet, $7,000, $10,000. Not everybody leaves the proverbial $2 million to take care of the mansion for the poodle.
SEN. MCDONALD: [inaudible] I think it was $10 million.
SUZANNE WALSH: It was a ridiculous amount of money.
SEN. MCDONALD: Are there any questions? If not, thank you very much.
SUZANNE WALSH: Thank you, Senator. Thank you.
SEN. MCDONALD: Rafie Podolsky, followed by Thomas Willcutt.
RAPHAEL PODOLSKY: Thank you, Mr. Chairman and Members of the Committee. My name is Raphael Podolsky. I'm with the Legal Assistance Resource Center, and I want to testify on two bills.
I was, as you may have noticed, I was recently testifying at the Planning and Development Committee and managed to get out just in time here.
The two bills are Senate Bill 36 and House Bill 5531. Let me start with Senate Bill 36, which is entitled AN ACT CONCERNING EVICTION FOR ILLEGAL DRUG OR FIREARM SALES OR POSSESSION.
The thing that strikes me as oddest about this bill is it is actually a bill whose statement of purpose is to implement the Governor's budget recommendations and came here as a raised Committee bill, as a raised bill, because it was part of the Governor's budget. I have no idea what is the inter-relationship between this bill and the Governor's budget.
In terms of the bill itself, it's both unnecessary and potentially confusing, and I would ask the Committee not to do the bill.
What it does is it finds a pretty obscure statute, 47a-31, which I've never seen used, which is a statute that in certain circumstances waives the notice to quit for keeping a house of ill fame in similar matters.
And it adds to that the sale or possession of drugs or firearms. But those behaviors are covered by other parts of eviction law. They're covered by the provisions on nuisance and on serious nuisance.
In addition, in those other provisions, there's no requirement that you wait for a conviction. This is based on an actual conviction of these crimes.
But a landlord can proceed and move forward based on the actual conduct. And in fact, a lot of the housing authorities sort of have tickle systems where they monitor the newspaper, and if they see that somebody's arrested who lives in the property, boom, they start with an eviction.
So it seems to be, it seems to, I think it doesn't work as well. And finally, by eliminating the notice to quit, I've said this a number of times, people will find it is harder to evict without a notice to quit because you need to do an unequivocal act to terminate the arrangement.
And if you don't, you could do it by letter, but then people will challenge the validity of the letter. The notice to quit is clean and easy.
House Bill 5531 is the Uniform Arbitration Act. Our position is the same as it's been in the past, which is if the Legislature is going to do what is essentially a comprehensive bill on arbitration, that it needs to include with it legislation that addresses consumer arbitration issues.
Arbitration is essentially a business remedy that gets extended to consumer contracts because people throw boilerplate language into the consumer contract in which when you sign the contract, along with all this tiny print, you've agreed that instead of having access to the courts, any dispute you have with the business with whom you're dealing is going to be handled through arbitration.
This puts you potentially at a real disadvantage because many of the arbitration contracts limit your remedies significantly. They may have, one of the earlier witnesses acknowledged that sometimes this happens and they have an unfavorable forum.
You may have to pay costs that you would not have to pay in litigation, and you may not even be able to go to small claims court in some of these contracts. You're forced into an arbitration system.
And it's simply not generally an appropriate remedy in consumer cases. It may be in business cases.
So there are a number of organizations nationally that have come up with proposals that try, that have to work around the federal Arbitration Act because the federal Arbitration Act preempts specific regulation, much regulation about arbitration.
We are suggesting, and this I believe was in Dan Blinn's written testimony from the National Association of Consumer Advocates, that you use at least parts of the National Consumer Law Center's model act.
I did not attach it to my testimony because I believe it was attached to him. And I'll tell you, the most important part of it for me, it's like a four-piece proposed language, but the most important part for me is the part about no waiver of relief rights, essentially, before a dispute arises, which is designed to go after the boilerplate contract, and it's written as a general provision, not as an arbitration provision.
So it would apply across the board to consumer contracts, rather than being written as an arbitration standard which probably would be preempted. There are a couple of other provisions in there as well.
That particular piece is part of New Mexico and North Carolina law. There's a piece that deals with the cost of arbitration, which is part of California law or similar to something in California law.
I would encourage you to, I mean, it's a common ground where the advocates for the bill, the Uniform Commissioners, and the consumer advocates could meet.
If the Committee wants to move forward with the bill, I would ask you to encourage everybody to sort of put together some consumer stuff that everybody could go with.
SEN. MCDONALD: Well, let me take this opportunity to encourage you to talk to them.
RAPHAEL PODOLSKY: I have.
SEN. MCDONALD: And still no common ground?
RAPHAEL PODOLSKY: Well, there's some, I think each, you had three witnesses, and I think each of the three witnesses has his own view on the subject.
I think, for some, there is discomfort in joining the Uniform Act with anything else. For others, I think there is no discomfort and they're fine.
And I would be very happy to try and, if there's a willingness to include consumer provisions, it can be done in a way, even though it's in the same bill, it doesn't have to be directly integrated into the act.
SEN. MCDONALD: But why are they, I mean, I understand that you are advocating on behalf of the consumer component of this, but why are they necessarily linked?
RAPHAEL PODOLSKY: Well, I think they're not, I don't want to say they're necessarily linked. I feel that they are linked and should be linked--
SEN. MCDONALD: So why can't we do this bill and then, in a separate bill or in a, you know, I mean, frankly, I hadn't heard that anybody wanted to raise that bill. We would have certainly raised that bill. But I don't necessarily see why they have to be considered in tandem or in the same bill even.
RAPHAEL PODOLSKY: I'm not saying that they have to be, but I think that, I think that there's certainly a feeling among the consumer advocates that if both the advocates of the Uniform Act and the advocates of Consumer Protections and Arbitration are linked together, it will be a bill that will, both bills will be stronger.
It will be more likely that both pieces will pass.
SEN. MCDONALD: Why is that true though, Rafie? Why will they be stronger? If they both stand on their own merit, why would one be stronger than the other?
RAPHAEL PODOLSKY: I think it may be, well, and I think it may be harder to pass the consumer provisions, frankly, and I think that, but I think that to pass the Uniform Act and not to pass the consumer provisions is the wrong thing to do.
We're looking at a general revision. It's a revision of the entire arbitration statute, and it does not address any of the unique problems that happen in the consumer arbitration field.
I mean, it's a one piece fits all kind of approach that, at least in my opinion, is geared towards business arbitration. And in effect, it says because it covers everything, well, the consumer stuff is just going to have to fit in.
So it doesn't, for example, in business negotiation or in business contracts, you often assume that the parties are of relatively equal bargaining power. Now that's not always true in a business context, but it's almost never true in a consumer context.
SEN. MCDONALD: But wasn't that, I mean, didn't the American Car Rental case sort of deal with that?
RAPHAEL PODOLSKY: I'm afraid that [inaudible] name I don't know.
SEN. MCDONALD: It was a Supreme Court decision last year where the Supreme Court essentially knocked down a consumer arbitration provision in a car rental agreement.
This is where, it was a liquidated damages provision for anybody who exceeded the speed limit. It automatically tracked how fast your car was going, and you had to pay a certain dollar amount for every mile above the speed limit you were going.
RAPHAEL PODOLSKY: I remember the circumstance. I don't remember the case, but I remember the circumstance.
SEN. MCDONALD: And the Supreme Court basically knocked it down saying that there was not, it was not effectively a valid arbitration provision or liquidated damages provision because it wasn't truly negotiated.
It was disproportionate to any damages that might have accrued, and it was essentially foisted upon a consumer.
RAPHAEL PODOLSKY: I would have to get back and read the case, but I don't know that that applies to boilerplate arbitration. There's certainly no general doctrine that says a boilerplate provision in a consumer contract is invalid because the consumer had no idea that when he signed the contract he was agreeing to it.
There may be some provisions that are perceived as so unfair or so unconscionable that they will be struck down on an unconscionability theory. It doesn't happy very often, but it can happen.
SEN. MCDONALD: I think it was the latter.
RAPHAEL PODOLSKY: And it may have been, in that case, that may have been what the issue was. I don't think there's a doctrine out there, I mean, as unconscionable as I may think some of these arbitration provisions are, I don't think there's a doctrine in which the courts say that there's any per se unconscionability.
It's not, you know, I mean, it might be true. If you wrote a clause that said you must physically travel to Seattle for any hearing, you certainly could argue that that's unconscionable.
Although it's not unheard of to have, in national contracts, to have venues all over the place.
Indeed, if the business were in Seattle, and you were doing it by mail or online in Connecticut, it probably is not unheard of that they can make you come to Seattle.
But I think it's a different issue, I guess is what I'm saying, and I think that we can resolve, I think if people want to move forward on this bill, I just think it would be a good thing to pull some of the consumer pieces in.
It would certainly get the consumer advocates on board. I think it would be, it would produce a better product in the end because it would acknowledge that there are issues about consumer arbitration that we can't simply exempt consumer contracts because of federal preemption.
SEN. MCDONALD: Okay. One final question. Putting aside the consumer components of this, are there any provisions of the bill as it stands with which you disagree?
RAPHAEL PODOLSKY: I don't have any specific objections, no, I do not.
SEN. MCDONALD: Okay. Thank you very much. Representative Wright.
RAPHAEL PODOLSKY: By the way, I should say there may be others who do, but--
SEN. MCDONALD: No, I understand.
RAPHAEL PODOLSKY: I want to reserve the right to change my mind if I hear some of those objections, but at the moment I do not.
SEN. MCDONALD: Thank you.
REP. WRIGHT: Thank you, Mr. Chairman. Just on this point, it's my understand that in this Doctor's Associates case, the U.S. Supreme Court essentially held that the federal Arbitration Act precludes states from singling out arbitration provisions for suspect status on, you know, interstate commerce grounds.
Certainly this Legislature would not want to enact an unlawful statutory provision at the state level, but I'm wondering at the federal level, in Congress, what actions have been taken or attempts to address these consumer concerns have been taken to advocate for changes in Congress to modify existing federal law?
RAPHAEL PODOLSKY: I'm going to have to get back to you on that. I know that there have been efforts made, have been made in Congress to look at things that would change the preemption aspects of the federal statute, but I'm not in a position to tell you in detail.
But if you would like, I'd be very happy to get back to you on that.
REP. WRIGHT: I would be interested.
RAPHAEL PODOLSKY: There are two things, though, I want to say in regard to your comment. The first is that at least the core of the preemption of the federal Arbitration Act, as I understand it, is not so much a commerce issue as a sort of preemption.
When the federal government acts, it has the power to preempt states from doing things. The legal issues have centered around what are the parameters of the preemption.
In other words, if we did a bill that specifically said arbitration cannot be used in X and Y circumstances, I think there's a consensus that that is considered preempted.
On the other hand, if we do a bill that's a general regulation of consumer contracts, it does not follow that that would be preempted. And there may also be various kinds of regulation around the arbitration process, but does not obstruct arbitration, that are not preempted.
The National Consumer Law Center has done extensive writing on the subject of what is and what is not preempted.
The second thing that's worth noting is that it's not that, if we passed something that turned out to be preempted, it's not illegal. It simply means it's not enforceable.
So for example, if we had a statute that said, and this is actually one of the proposals of the National Consumer Law Section, boilerplate arbitration clauses in consumer contracts are unenforceable except to the extent that federal law provides for their enforcement.
That's a perfectly legitimate state statute, and it would mean if they change the federal law, our statute would immediately come into play. If they don't change the federal law, then our statute will be sitting there, but it essentially will be inoperable.
And it's not a question of legality or illegality. It's a question of whether you can or cannot enforce the state law. So you don't necessarily, if you have federal preemption, you don't have to repeal a state law.
It's a big issue on the credit side because of the National Banking Act preempts state regulation of national banks, but it doesn't mean the states have to repeal their laws or exempt banks from their laws. It just means you won't be able to apply the law to the bank.
REP. WRIGHT: Thank you. Thank you, Mr. Chairman.
SEN. MCDONALD: Is there anything further? If not, thanks very much.
RAPHAEL PODOLSKY: Thank you very much.
SEN. MCDONALD: Thomas Willcutt. And then is Allison Sylvia here? If not, Cathy Osten? And Chris Powell would be next then. Good evening, Sir.
THOMAS WILLCUTTS: Good evening, Senator. Thank you, and thank the Committee for taking my testimony. Someone was kind enough to sign in my name, and I think they left the S off. It's Willcutts. Thank you.
I'm here to testify on House Bill 5531 concerning adopting the Uniform Arbitration Act. I'm here to represent the practical perspective of the consumers.
I have over 20 years of extensive experience representing consumers on matters involving arbitration agreements.
I have listened to all the prior testimony today. There's not a question that was asked that I could not address for this panel, and would be happy to do so.
One of the questions, Senator McDonald, that you asked was why do we need to, why should we address these consumer issues in this act?
In fact, the Uniform Act specifically takes note in its commentary of the problem of consumer contracts of adhesion. It acknowledges that this is a problem, that arbitration is designed to apply to parties who freely decide we're not going to go to court, we're going to arbitrate our dispute instead.
This is not the case for consumer contracts of adhesion. Beyond the fact that there's not that agreement, the commentators for the Uniform Act also acknowledge that advantage can be taken of consumers where one side is drafting the arbitration agreement.
Now in acknowledging these facts and problems, the commentators simply say, well, but we're not going to, we don't cover that. So it is a problem appropriate to a consideration under such an act. It is acknowledged by the commentators.
I think probably the reason they don't cover it is they probably could not reach consensus concerning the business versus consumer interests or concern for preemption, but they would have to answer for themselves.
I have spoken to some of the proponents of this bill, and I have a proposal in my written testimony, which I honestly do not think that they would oppose, that I think would principally address most of the consumer concerns and avoid the problem of preemption in doing so.
Representative Wright, to answer your question, the Congress is addressing this issue right now. I believe it's Senator Feingold who has a bill that he has sponsored that is trying to undo the federal Arbitration Act for all consumer contracts.
It would be nice if that passed, but it hasn't yet. Certainly the Congress recognizes that this is a problem as well.
You can have all the rules and procedures that you want, whether in this act or the witnesses talked about the groups that administered the arbitration.
They say, well, they have these rules that protect consumers. All those rules will not have any benefit if the system is bias in favor of one of the groups, which is the thesis of my written testimony in my proposal. I'll be happy to take any questions.
SEN. MCDONALD: Thank you. Are there any questions? If not, thank you very much.
THOMAS WILLCUTTS: Thank you.
SEN. MCDONALD: Next is Chris Powell. Is Dr. Rocco here? Mike Riley? Kevin Hennessy? And, Kevin, I think there's a misprint here. Are you testifying against House Bill 5531?
KEVIN HENNESSY: [inaudible - microphone not on]
SEN. MCDONALD: Okay. It was misprinted as 5331, so okay. Good evening, Mr. Powell.
CHRIS POWELL: Good evening, Chairman Lawlor, Chairman McDonald, Members of the Committee. Thanks for your work here today.
My name is Chris Powell. I live in Manchester. I'm the managing editor of the Journal Enquirer there, and I'm speaking for the Connecticut Council on Freedom of Information, of which I am legislative chairman.
Also speaking for Morgan McGinley, our President, who was here earlier, and who I think left a statement.
In regard to Raised House Bill 5528, AN ACT CONCERNING THE FREEDOM OF INFORMATION ACT, the Connecticut Council on Freedom of Information favors the first part of this bill, which attempts to define the administrative functions of the Judiciary so that more judicial records, particularly court dockets such as those at issue in the recent Connecticut Supreme Court case that became so troublesome, will be public as a matter of law rather than mere judicial sufferance or discretion.
Maybe this legislation will work, or maybe we'll never know if the Judiciary continues exercising its discretion in favor of greater openness. In that case, this legislation may never be tested.
In any event, the bigger issue facing this Committee, the General Assembly, the Governor, and the Judiciary, an issue debated before this Committee last year, and really cited at length in your questioning of Judge Quinn here today, will remain whether the Judiciary acknowledges the constitutional authority of the Legislature and the Governor under Article 5, Section 1 of Connecticut's Constitution to legislate the rules of judicial procedure, including rules for the openness and accountability of the courts.
The Connecticut Council on Freedom of Information understands that the is Committee intends to address the rule making issue again this year, and we're grateful for that and hope to offer comment on it at the proper time.
If the rule making issue can be settled in favor of democracy, Connecticut will know that its courts have been brought fully under the law.
The Connecticut Council on Freedom of Information opposes the second part of Raised House Bill 5528, which, in the name of personal security, would exempt from disclosure the residential addresses of a vast range of public officers and employees.
Yes, the conscientious and necessary work of those officers and employees may inspire ugly resentments among ne'er-do-wells. But the not so conscientious work of those officers and employees also may justify investigation by the news media and by the public.
Such investigation will be greatly hampered if those officers and employees cannot be identified and distinguished from others in a primary respect, their residential addresses.
Access to these addresses is often necessary in determining whether a public officer or employee has engaged in corruption or fallen into conflict of interest.
Our country already has been scared too far into the permanent emergency of the national security state, wherein the accountability of the government dissolves.
Connecticut should resist this. Let's not be that scared yet. But if this fear really must be placated, the bill could be amended to require that the State Police and the public officers and employees themselves at issue here be informed of any request for the addresses and the identity of the people seeking the addresses.
Not to give the public officers and employees control over disclosure of their addresses, but just to give everyone a chance to judge whether a request may involve a threat. Thanks again.
SEN. MCDONALD: Thank you. With respect to that last point, it may be a fair way to resolve concerns identified by various other Commissioners here, is that something that you've spoken to any of those Commissioners about?
CHRIS POWELL: No, just occurred to me.
SEN. MCDONALD: It strikes me as something that might work, so we'll take it up with them. With respect to the adjudicative functions issue, I apologize, were you here when Judge Quinn testified?
CHRIS POWELL: Tried to restrain my cheering, Senator.
SEN. MCDONALD: Okay. Now, as I understand it, the whole issue of whether or not these are going to be adjudicative records or not is a moving target.
I was, I guess, struck by the notion that the Supreme Court has a 4-3 precedent that the Judicial Branch is now advocating the overruled legislatively.
And it also occurred to me at the time that you didn't need the Freedom of Information Commission to file a motion to re-argue that case.
The court could have issued an order re-arguing the case on its own motion. It didn't need a party to do it, but I guess we're beyond that, or at least some of us are. I'm not certain I've gotten beyond it.
But with respect to the issue of what would be within the scope of rule making authority, is there anything that you can conceive of or concede might be truly unique to the rule making function that should be kept confidential?
CHRIS POWELL: senator, I don't understand any of this either. It seemed to me Judge Quinn was telling us today that what's unconstitutional on Monday can be made constitutional on Tuesday without going back to the constitutional authority.
My issue, CCFOI's issue has been simply that this, these questions have to be settled democratically. Our Constitution is very clear, the powers and jurisdictions of these courts shall be defined by law.
This Committee, this Legislature makes certain, puts certain procedures for the courts into law, and some are accepted and some are not. Some are called unconstitutional and some are accepted as constitutional.
Judge Quinn's remarks here today were hugely puzzling. Is she going to tell you that the Supreme Court is undoing its decision? I think the Legislature simply has to resolve this issue.
Does the court have the authority to make its rules without the permission of the Governor or the Legislature? Do the Governor and the Legislature have the authority to legislate rules for the courts?
I know this Committee tried very hard last year to work out a compromise, and it sounded to me today that the Judiciary really would prefer if she was not pressed.
SEN. MCDONALD: Thanks. Thanks very much. Are there any questions for Mr. Powell? If not, thanks for your time. Next is Kevin Hennessy, and then Eric Ellison. Is Mr. Ellison?
And then I believe that's it. Was there anybody after these two gentlemen who wanted to testify before the Committee? If not, welcome, Mr. Hennessy.
KEVIN HENNESSY: Thank you. Good evening, Senator McDonald, Representative Lawlor, and Members of the Judiciary Committee.
You have before you, I believe, four different bills that we're testifying on, one is my colleague Kia Murrell. She submitted testimony regarding House Bill 5534, AN ACT PROHIBITING DISCRIMINATION ON THE BASIS OF MENTAL DISABILITY IN STATE CONTRACTS.
She is our labor and employment attorney and the expert on the crow statutes. I'm just here to reiterate her position that the federal law is a lot narrower than the state law defining mental disability and that our concern is that if it's too broad, we're going discourage potential state contractors who would like to see that tightened up.
But if there are any technical questions, I would ask that you refer them to me, and I'd be able to refer them to my colleague, and she'd be able to answer those for the Committee.
I prefer to focus on a couple of other bills, and I'm going to keep it brief because I know it's been a long day.
The first one is Senate Bill 321, which deals with the unauthorized practice of law. I've been dealing with this issue for the past nine months or so when the Judicial Branch adopted Rule 2-15a in June last year with regards to authorized house counsel.
Some of our larger members, their employees that are foreign education are left in the dark. They can't register as authorized house counsel, nor can they sit for the bar exam the way the current educational requirements are described. They have to be a graduate of an ABA approved law school, and foreign law schools are not ABA approved.
I was pleased to see that the Bar Association decided to suggest retaining the language in Section B of that statute. That was one of my suggestions.
Really the intent of that statute, I believe, is to go after the unscrupulous person that's putting themselves out to be a lawyer, not someone that's working in house, not really having an impact on the consumers.
Those lawyers are vetted by the states where they are admitted and by their employees, so they have already faced certain testing, I guess, is the way that we focus it.
So I'm pleased that they're withdrawing that, and I'm optimistic that we're making progress with the Judicial Branch and the Bar Examining Committee to rectify the problem with regards to the foreign educated lawyers. So I'd ask you to hold off on that.
And then finally, Senate Bill 328, AN ACT CONCERNING COMPENSATION OF JURORS, is a concern for us. Currently, the statute says that employers must pay their employees five days of regular wages, and that's uncommon.
Not all states have that in place, and that's generous of employers to pay more if they have the means.
What concerns us is that the statute draws, it's a sliding scale based on the number of employees, how much you have to pay. So if you have under 20 employees, you have to pay 5 days. Between 21 and 40, it's 10, and so on. And the cutoff number is 100.
And I believe 100 employees is not necessarily a large company, and there's no nexus between the size, the amount of employees you have and your profitability. Just because you're large doesn't mean you're profitable.
And then the other fact regarding this issue is that jury service is a civic duty. It's not really an employment duty. There is no nexus between serving as a juror and being employed. You don't have to be employed to be called.
We submitted testimony, and I talked with Representative Wright regarding House Bill 5531, the Uniform Arbitration Act, and we just had some concerns that have been around. As you said, this bill has been up many times, and we'd be happy to talk with anyone, and maybe our concerns this time have been addressed, and we'd be happy to speak with anyone.
SEN. MCDONALD: Thanks for your testimony. You know, with respect to the jury service issue, the concern actually is based in the way employers respond.
If the business community was as accepting or helpful as some of your members are, if all of them were like that, I guess we wouldn't have a problem.
But a lot of jurors find it extraordinarily difficult to fulfill their civic duty that, as you appropriately characterize it, when their employer is harassing the heck out of them.
Do you at least acknowledge that that happens?
KEVIN HENNESSY: Sure. I'm sure that does happen, but rather than mandating all employers pay, maybe a better way to address the problem would be to come up with a fund for jury payment and so it's state administered as opposed to making the employers, you know, have to pay that.
SEN. MCDONALD: Could you speak into the microphone? I want to make sure we have that recorded. The CBIA wants a new state fund.
KEVIN HENNESSY: Not a new state fund, just an option. It's not that I'm advocating for that. It's just another option rather than making the employers pay.
SEN. MCDONALD: Okay. But you have no, other than a state fund--
KEVIN HENNESSY: That's just one other potential answer to--
SEN. MCDONALD: What else do you have?
KEVIN HENNESSY: Off the top of my head, I don't have anything else right now, but I'm sure we can come up with something.
SEN. MCDONALD: I'll look forward to you sharing that information with me. Thank you very much. Are there any other questions? If not, thanks very much, Kevin. Eric Ellison.
ERIC ELLISON: Good evening, Senator. I'm Eric Ellison. I'm a Parole Manager with the Department of Correction. I manage a unit that supervises sex offenders statewide.
We have eight parole officers that are assigned to that unit. I'm here to offer testimony today in opposition to Section 4 of Raised House Bill 5528.
I believe as written, it erodes current protections regarding the disclosure of the residential address of our at-risk employees.
In doing our work as parole officers, parole managers, I'm sure you're aware that in many cases we return offenders to custody for technical violations, criminal violations.
In some cases, we're unable to release these offenders to the community, even though they're paroled because of a lack of an appropriate address.
In some cases, these offenders don't appreciate that and have, in the past, harassed and attempted to intimidate parole officers and, including myself, and I'd like to share that, some of those experiences.
Currently, I and my family take a slim comfort in knowing that if we go on my town's website, and we go to my address, we will not see my name. We'll see name suppressed at owner's request. And I assure you that I still get a tax bill in the mail, and I still pay those taxes.
In the past, December 5th of '05, I returned home to find legal process had been served on my home. That legal process had been crafted and typewritten by an incarcerated offender, served by a marshal [Gap in testimony. Changing from Tape 4A to Tape 4B.]
--so legal action was taken against me that was later proven to be frivolous and baseless.
That offender later, I later observed that offender driving by my residence when he was released, approximately two weeks later. As you can imagine, it was distressful to me, but more so to my family.
Most recently, within the last two weeks, a parole officer's family was contacted by an incarcerated offender's wife to inquire about the status of his release.
The offender's wife attempted to contact the parole officer, but mistakenly contacted the parole officer's 79-year-old mother and father at their residence. They are currently in distress because of an offender knowing where a parole officer lives.
That's pretty much it. I'd just like to ask that we maintain the protections that we currently have, and I just think it's some language that, I think the intent is there, but the language limits it to just our agency, protecting our addresses instead of a broad scope.
SEN. MCDONALD: Okay. Well, and I certainly understand the problem. I'm looking for a solution to it rather than us, year after year, adding yet another category of state employee who wants to have their information private.
And that's really what has ended up happening. Year after year, people have been coming and saying we need to be on the list, and prosecutors and, you know, a lot of people who have very legitimate concerns.
And Representative O'Neill pointed out that he's received death threats. I know that Representative Lawlor and I have received death threats. I don't know if others on the Committee have received them. And we are, I guess, are in the very unfortunate position of having to weigh the competing interests here.
I guess, let me ask you, the issue you just identified, not you, but let's pick one of your colleagues. Let's say there was somebody who did treat a parolee or an inmate poorly, and maybe even violated their civil rights.
How is that, if a parolee is going to bring a civil rights action against you, how would that parolee be able to serve you with a complaint?
ERIC ELLISON: We would be served in our office, as is done routinely. There's process servers at the Commissioner's office, our central office, serve us in our office, our business address. That's often the address that we use.
SEN. MCDONALD: Well, you can't leave it, you can't just leave it with the office. I mean, if somebody wanted to, and I understand what I'm posing here is probably extraordinarily rare, but if somebody wanted to avoid service of process, and you couldn't find the person individually to have a marshal serve that individual, the only other means we have in law really is to leave it at your usual place of abode. Right?
How does that, basically, what we are denying, and by the way, just take it outside of the context of someone you've worked with, as somebody who has been under your supervision, put that aside.
Let's say it's a credit card company that wants to try and collect on a bill and wants to serve you. Presumably they have your address--
ERIC ELLISON: That's a private matter. This is, you know, these are, this is animosity or hostility from an offender because of, based on our us doing our job. Why should our personal, private address come into play?
If currently we're protected under the law, I would ask that that not be taken away from all of the staff that do a very difficult job in supervising the offenders.
We can be sued, and we are sued, and we're served in the office. That's been my experience. You know, this is my personal experience, as I was told by the AG's office, that they hadn't seen anybody cross those boundaries in 13 years.
So they are rare, but offenders do you have boundary issues. I think, again, we take a slim comfort in knowing that our address is not readily available by our town on the Internet.
I think with the proliferation of the Internet though, there needs to be more protections, maybe more avenues to protect employees' privacy.
We're talking about our families again also, not just me and my, I'm going to be held accountable. What I do at work is transparent through the state. We're talking about family members that had nothing to do with these offenders, and they're impacted also because they live there too.
That's just the point I'm trying to--
SEN. MCDONALD: No, and I understand the point. I'm just trying to figure out how we can address the issues you've identified with some of the competing interests that are out there that are no less legitimate.
You have very legitimate issues that you've identified for personal safety, and the extraordinary steps that you can go to.
But as you indicate, with the proliferation of the Internet, people can often find out this information anyway. The question is are we making you safer by restricting it from this one source, I guess. Okay.
ERIC ELLISON: Yeah, and if I could just add. You know, the one instance I mentioned, if you go on my town's website and you click on my address, it says suppressed. So again, I think that's a slim comfort, and many of our employees enjoy that, knowing that.
SEN. MCDONALD: In your town--
ERIC ELLISON: The assessor's site.
SEN. MCDONALD: Well, no, it wasn't doing that. Actually, are you registered to vote?
ERIC ELLISON: I am.
SEN. MCDONALD: And have you suppressed your address there as well?
ERIC ELLISON: No, I have not. I just was directed to do my, you know, my grand list and also my motor vehicle, taxes.
SEN. MCDONALD: Right.
ERIC ELLISON: Yeah, you raise a good, I'm not aware, yeah.
SEN. MCDONALD: Well, it's amazing, you know, it's amazing how many times you end up giving your name and your address for all sorts of things, and it's not like it just goes into a black hole.
All of those points end up connecting to other points. And as you say, you can take reasonable precautions, but you're never truly isolated in, at least in the United States I guess.
Thank you very. Are there any other questions? If not, thank you very much.
ERIC ELLISON: Thanks.
SEN. MCDONALD: Were there any other members of the public who wished to testify? If not, the public hearing will be closed.
[Whereupon, the hearing was adjourned.]