Deconstructing The Jane Doe Due Process Decision

The Jane Doe case is back in the news.  Jane Doe is the transgender teen who, at the request of the Department of Children and Families (DCF), was transferred temporarily to the York Correctional Institution for Women in Niantic because of her history of physical violence towards other girls and DCF staff.

Last week the Appellate Court issued a decision concluding that Jane Doe’s constitutional right to due process of law was violated because the trial court used the wrong burden of proof during a hearing on DCF’s request to transfer her to the custody of the Department of Corrections.  DCF made that request pursuant to General Statutes section 17a-12(a), which authorizes a judge to approve such a transfer upon proof that a person is a danger to him or herself and others and cannot be safely held in a DCF facility.  In making its “dangerousness” determination, the trial court used a preponderance of the evidence standard, the standard used in most civil cases.  Jane Doe’s attorneys had argued that the court should have applied the proof beyond a reasonable doubt standard, which is required in criminal cases.  The Appellate Court squarely rejected that argument.  However, the court then “split the baby” and held that the trial court should have used a clear and convincing evidence standard–a standard higher than a preponderance but lower than proof beyond a reasonable doubt.

This post examines the Appellate Court’s decision and questions whether the decision pays sufficient respect to relevant U.S. Supreme Court precedent and to the Connecticut Supreme Court’s decision in In re Steven M (2003), a case that also involved the transfer of a youth in DCF custody to the Department of Corrections (DOC) pursuant to section 17a-12(a).  This post also considers whether the Appellate Court should have remanded the case back to the trial judge, The Honorable Burton Kaplan, with directions to answer a single question: “Would your decision granting DCF’s request for permission to transfer Jane Doe have been different if you had used a clear and convincing evidence standard?  I suspect Judge Kaplan would have answered that question “no,” in which case his use of a preponderance of the evidence standard would have constituted what is known as “harmless error.”

I.  What is “Due Process” And When Is It Required?

The Fifth and Fourteenth Amendments of the U.S. Constitution provide that no person shall be deprived of life, liberty or property without due process of law.  The Due Process Clause traces its roots to the Magna Carta.  In its simplest form, due process means that a person is entitled to notice and an opportunity to be heard before the state deprives him or her of life, liberty or property, and that any proceedings concerning the deprivation must be fair.

Due process is not “one size fits all.”  The specific “process” that a person is “due” varies depending on the nature and extent of the deprivation and the government’s reasons for seeking the deprivation.  For example, before the state can deprive a person of his life or liberty for violating a criminal law, the person is entitled to notice of the specific charges against him, a jury trial, the right to call witness and cross-examine the state’s witnesses, etc.  As noted, due process in the criminal context also requires the state to prove its case beyond a reasonable doubt, the most rigorous burden of proof under the law.  In other instances, such as certain administrative hearings, the proceedings are informal, a party may only be entitled to present a written or oral statement of the reasons why he objects to the state’s actions, and lower burdens of proof apply.

The existence of a lawful liberty interest is a condition precedent to a person’s entitlement to due process.  No liberty interest, no due process.  Consequently, an interesting question arises when the state wants to take some kind of action against a person who has already been lawfully deprived of his liberty and is in state custody.

The paradigmatic situation is that of a convicted felon. Once convicted, the person is transferred to the custody of prison officials, who place him in a particular prison within a prison system.  Now, suppose that, after the passage of time, prison officials decide to move him to a different prison where the conditions are arguably less favorable.  Does that transfer to a less favorable prison environment constitute a deprivation of the convict’s liberty such that he is entitled to some kind of hearing, perhaps even a trial?

The short answer is  generally “no.”  Once a person has been convicted of a crime and is sentenced to prison, he has forfeited his constitutionally protected liberty interest.  State corrections officials may move him from prison to prison at their own discretion, i.e. no hearing is required.  See, e.g., Meachum v. Fano, 427 U.S. 215 (1976).

The Supreme Court has held, however, that certain kinds of “major changes in the conditions of confinement” of a person who has forfeited his liberty interest through criminal conduct may trigger some level of due process protection.  For example, in Vitek v. Jones, 445 U.S. 480 (1980), the court held that a prisoner retained a residual liberty interest in not being involuntarily transferred from a prison to a state mental hospital for psychiatric treatment.  Accordingly, the state was required to provide some very basic procedural protections to the prisoner before depriving him of that residual interest.

The Supreme Court has also held that transferring a prisoner to a so-called “Supermax” facility may, under some circumstances, trigger residual due process protections.  See Wilkinson v. Austin, 545 U.S. 209 (2005).  The process that is due in such a situation, however, is quite minimal.   Id.  at 216-18.

Significantly, the Supreme Court has never held that an incarcerated person who is subject to a major change in the conditions of confinement is entitled to force the state to justify the transfer by proof beyond a reasonable doubt or even by clear and convincing evidence.  Indeed, the cases do not discuss the requisite burden of proof at all.  Still, the Supreme Court’s holdings that major changes in confinement only trigger minimal due process requirements suggests that the preponderance of the evidence standard would satisfy constitutional concerns.

II.  Jane Doe’s Due Process Argument.

In November 2013, Jane Doe was adjudicated as delinquent based on her guilty plea to assaulting an officer.  She was committed to DCF custody for a period not to exceed 18 months.  Thus, Jane Doe’s situation as a person in DCF custody was analogous, although not identical, to an adult had who been lawfully convicted of a crime and was already in the state’s custody.  Just as corrections officials generally have the discretion to move a prisoner from one facility to another in the prison system without affording the prisoner the  opportunity to contest the transfer, DCF has similar discretion to move adjudicated delinquents in its custody among various DCF facilities.

However, General Statutes section 17a-12(a) requires DCF to obtain court approval before transferring a person in DCF custody to the DOC for safety reasons.  Clearly, the General Assembly believes that a potential transferee, like Jane Doe, is entitled to some level of due process, including an evidentiary hearing.  The statute, however, is silent concerning the burden of proof applicable to a transfer hearing.

When DCF invoked section 17a-12(a), Jane Doe challenged her proposed transfer on a number of grounds. In particular, she argued that transferring her to a DOC facility constituted such a major change in the conditions of her confinement that she was entitled to the same level of due process that a person subject to a criminal proceeding enjoys, i.e., a jury trial, the right to present evidence and cross-examine witness, and to have the claim of “dangerousness” proved beyond a reasonable doubt.  The trial court disagreed and applied a preponderance of the evidence standard.

On appeal, Jane Doe renewed her argument that she was entitled to the due process protections associated with a criminal proceeding.  DCF opposed that argument, relying in large part on the Connecticut Supreme Court’s 2003 decision in In re Steven M, which also addressed the due process rights of minors in DCF custody subject to a potential transfer under section 17a-12(a).  In that case the Supreme Court squarely rejected the argument  that a transfer hearing is analogous to a delinquency hearing:

[U]nless the transfer [of a juvenile] to a different facility constitutes a major change in the conditions of confinement amounting to a grievous loss, a juvenile who already has been adjudicated delinquent and is in the custody of the state does not possess the same liberty interest as a juvenile who faces delinquency proceedings.  A fortiori, a delinquent juvenile who faces transfer proceedings pursuant to § 17a-12(a) does not have the same liberty interest as an adult who faces criminal proceedings. (Emphasis supplied) (Internal citations and quotations omitted)

Following this clear precedent, the Appellate Court rejected Jane Doe’s argument that she was entitled to the same level of due process that a criminal defendant enjoys, including the proof beyond a reasonable doubt standard.  The Appellate Court then proceeded, however, to hold that the clear and convincing evidence standard applied to transfer proceedings under section 17a-12(a).  Where did that holding come from?

At the end of her opening brief on appeal, Jane Doe made a one paragraph argument to the following effect: “Appellate Court, if you disagree with my argument that I am entitled to the full level of due process a criminal defendant enjoys, you should at least conclude that the clear and convincing evidence standard of proof applies to transfer hearings under section 17a-12(a).”  The argument lacked any citations to case law or other legal authority supporting the stated proposition.  Appellate jurists and practitioners call this an “inadequately briefed” argument.  Appellate courts routinely refuse to consider such arguments and generally dismiss them with the back of a judicial hand.

DCF argued in its opposition brief that Jane Doe had not adequately briefed her “clear and convincing evidence” argument and that the Appellate Court should not review it.  I assume that this prompted Jane Doe to develop her argument a bit more in her reply brief.  Appellate courts typically refuse to consider arguments that are raised for the first time in a reply brief.  On this occasion, however, the Appellate Court apparently made an exception and decided to consider Jane Doe’s argument on its merits.  The Appellate Court did not explain why it disregarded its well-established position that it will not consider inadequately briefed arguments or arguments that are raised for the first time in a reply brief.

(Disclosure: I read the parties’ opening briefs when they were first filed and were available on the Appellate Court’s electronic docket.  They are no longer on that docket.  I have not read Jane Doe’s reply brief, which is why I must assume its contents.  I think the briefs should be publicly available, with appropriate redactions, so that people can evaluate the Appellate Court’s decision in light of the arguments the parties made.  That, however, is an argument for another day.)

The Appellate Court’s conclusion that the clear and convincing evidence standard of proof applies to transfer hearings under section 17a-12(a) is not based on any case that actually applies that standard of proof in that context or, in my opinion, in any comparable context.  Indeed, neither Jane Doe, in her briefs, nor the Appellate Court, in its decision, cited to a single case that actually applied the clear and convincing evidence standard in a comparable context, that is, a context involving a person, adult or minor, who has already been deprived of their liberty and is in state custody following a lawful judicial proceeding.

Instead, the Appellate Court relied on a U.S. Supreme Court case called Mathews v. Eldridge, 424 U.S. 319 (1976), which sets forth several factors that courts must consider when deciding what “process” is “due” in a particular situation:

First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

After considering these factors, along with several other cases of attenuated relevance, the Appellate Court concluded that the clear and convincing evidence standard applied to transfer proceedings under section 17a-12(a).  Because the trial court had applied a lower burden of proof, the Appellate Court held that Jane Doe’s due process rights had been violated.

III.  What Would Judge Kaplan Say?

In conclusion, I respectfully disagree with the Appellate Court’s decision for three reasons.  First, I don’t think the decision is consistent with In re Steven M.  True, that case did not address the specific issue presented in this case, to wit, the applicable burden of proof in a transfer hearing under section 17a-12(a).  But I think the case leans heavily against applying a clear and convincing evidence standard.  Second, I think the relevant U.S. Supreme Court case law also weighs heavily against applying that heightened evidentiary standard in this context.

My third basis of disagreement is with the Appellate Court’s decision not to remand the case to Judge Kaplan, who presided over the transfer hearing and made the factual findings concerning Jane Doe’s “dangerousness.”  (Click here to read his decision.)  The Appellate Court’s conclusion that Judge Kaplan’s decision violated Jane Doe’s due process rights necessarily assumes that he would not have reached the same decision if he had applied the clear and convincing evidence standard.  I can’t read his mind of course, but having read his original decision I think there is a good chance he would have said that he would have made the same factual findings under that standard.  If so, his failure to apply that standard in the first instance is harmless error.  Notably, the Supreme Court applied a harmless error analysis in its decision in In re Steven M, albeit in a different factual context.

The Appellate Court said that there was no point in remanding the case to the trial court for a new trial because Jane Doe had already been released from DOC custody and a new trial would have been pointless.  However, remanding the case to Judge Kaplan for an articulation of whether his factual findings would have been different under a clear and convincing evidence standard of proof is not the same thing as remanding a case for a whole new trial.

Perhaps an argument can be made that the parties would have presented different evidence if they had known a different standard of proof applied and, therefore, simply remanding the case to Judge Kaplan for an articulation based on the existing evidence would be unfair and prejudicial.  I don’t find that argument persuasive in this case.  No doubt DCF put on the best evidence it had of Jane Doe’s “dangerousness” and Jane Doe put on her best evidence to the contrary.

Let me close with this thought.  As a matter of public policy, a case can be made for requiring the state to meet a higher standard than a preponderance of the evidence in a transfer hearing under section 17a-12(a).  The General Assembly could impose that burden of proof if it wanted to.  My point in writing this post is only to explain why I don’t think that existing case law, federal or state, supports a heightened standard and why I believe the Appellate Court should have afforded Judge Kaplan the opportunity to say how he would have decided the case under the clear and convincing evidence standard.  But, I have been wrong before. . . .  🙂