Commissioner of Health Services v. Youth Challenge of Greater Hartford, Inc.

Shea, J.,

dissenting in part. I agree with the majority opinion in all respects except its attempted justification of the overbreadth of the modified injunction in requiring that all residents of the facilities operated by the defendant be discharged despite indications in the finding that not all of them have a history of drug or alcohol abuse. There is a significant discrepancy between the finding of the trial court that “almost all the residents” of the Girls’ Home and of the Ranch have substance abuse problems and the terms of the modified injunction, which require the defendant to discharge “all residents from the Girls’ Home and Ranch” unless it applies to the department of health to obtain licenses for these facilities as drug and alcohol abuse treatment centers. (Emphasis added.) If there are any residents of the Girls’ Home or the Ranch who have not had drug or alcohol abuse problems, as the finding implies, the modified injunction should not have required that these persons be compelled to leave the defendant’s facilities. No license is required for the defendant to operate its religion study program for the benefit of those residents who are not “suffering from . . . alcoholism or other drug addiction.” General Statutes (Rev. to 1985) § 19a-490. “Where the subordinate facts found by the trial court do not . . . support the injunction issued, the injunction must be vacated”; Karls v. Alexandra Realty Corporation, 179 Conn. 390, 403, 426 A.2d 784 (1980); or modified to conform to the facts found.

The defendant has made only a general claim that the modified injunction is overbroad and has not spe*674cifically pointed to the finding as a limitation on its proper scope. This court, nevertheless, should regard this obvious flaw as plain error; Practice Book § 4185; see Finley v. Aetna Life & Casualty Co., 202 Conn. 190, 196, 520 A.2d 208 (1987); and direct a further modification of the injunction to exclude any residents who have no history of substance abuse. See DeCecco v. Beach, 174 Conn. 29, 35-36, 381 A.2d 543 (1977). With respect to such persons, the operation of the injunction in its present form would constitute a clear violation of their constitutional right as well as that of the defendant to engage in the practice of religion.

Accordingly, I dissent from the affirmation of the judgment without further modification of the terms of the injunction.