Goldberg v. Insurance Department

Borden, J.,

dissenting. The majority misstates the issue in this appeal. The pivotal issue is not, as the majority argues, whether the Regulations of Connecticut State Agencies § 38-4-8 had a substantial impact on the parties. The cases on which the majority relies; Salmon Brook Convalescent Home v. Commission on Hospitals & Health Care, 177 Conn. 356, 417 A.2d 358 (1979); Eagle Hill Corporation v. Commission on Hospitals & Health Care, 2 Conn. App. 68, 477 A. 2d 660 (1984); and Cheshire Convalescent Center v. Commission on Hospitals & Health Care, 34 Conn. Sup. 225, 386 A.2d 264 (1977); involved the question of whether particular decisions, rules or policies which the administrative agency did not present as regulations were in fact regulations because they had a substantial impact on the rights and obligations of parties in the future. In this case, the defendant agency labeled its action a regulation, and there is no question that § 38-4-8 was meant to have general applicability beyond this particular case. Nor is there any question that it was adopted pursuant to proper procedures, and that it was applied in this case.

The pivotal issue is, therefore, whether § 38-4-8, which simply incorporated by reference the requirements and procedures of the UAPA, sufficiently com*629plied with the mandate of the UAPA requiring that the defendant “adopt as a regulation rules of practice setting forth the nature and requirements of all formal and informal procedures available provided such rules shall be in conformance with the provisions of” the UAPA. General Statutes § 4-167 (a) (2). I would hold that it does.

It is true that the drafting of § 38-4-8 displays a discomforting laziness in the attempt to comply with General Statutes § 4-167 (a) (2).1 Nonetheless, in my view it sufficiently complied with that statute.

The Regulations of Connecticut State Agencies § 38-4-8 at the time of the hearing provided in pertinent part that “[a]ll hearings conducted in the insurance department are conducted in accordance with the requirements of and procedures suggested in Public Act 854 of the 1971 Session of the General Assembly, Sections 12 through 17, inclusive, as the same may be amended from time to time.” Public Acts 1971, No. 854, §§12 through 17 are the contested hearing provisions of the UAPA, including the special provisions concerning licenses. They are now General Statutes §§ 4-177 through 4-182. Thus, the regulation in question incorporated by reference the statutory provisions of the UAPA.

Those statutory provisions are quite clear and very detailed. They provide for detailed notice, the opportunity to present evidence and argument, informal dispositions, a definition of the record, transcription of the proceedings, and findings of facts based solely on the evidence and on matters officially noted. General Statutes § 4-177. They also provide for rules of evidence; General Statutes § 4-178; a procedure for a pro*630posed decision; General Statutes § 4-179; and time and form limitation on final decisions. General Statutes § 4-180. They bar certain ex parte communications. General Statutes § 4-181. Finally, they make special, even more detailed and stringent provisions applicable to licensure matters including, as in this case, matters involving the suspension of licenses. General Statutes 4-182.

The plaintiffs do not claim that those statutory provisions were not followed. Indeed, the record makes clear that they were scrupulously applied and that all applicable procedural protections were provided. Nor can I discern in this record any prejudice to the plaintiffs flowing from the fact that the procedures mandated by the UAPA were incorporated by reference into the defendants’ regulation.

The majority’s reliance on Monahan v. Board of Trustees, 486 P.2d 235 (Wyo. 1971), is misplaced. In that case, the administrative agency had not adopted any regulation governing its procedures, either by reference to the state’s administrative procedure act or otherwise. In the absence of governing procedures, the agency proceeded to violate fundamental fairness by appointing its own attorney as the hearing officer who, in turn, acted as both prosecutor and hearing officer, interrogated and cross-examined witnesses, ruled on his own and opposing counsel’s objections, sat with the agency as it made its decision, and made public statements to the audience at the hearing as to why the hearing was even necessary. Id., 238.

Nor am I persuaded by the argument of the majority as to the fatal vagueness of the second sentence of the Regulations of Connecticut State Agencies § 38-4-8.1 would agree that this inartfully drafted language leaves much to be desired. To the extent that it may be vague, however, that is not an issue in this case. It is clear *631from the record that, despite the statement in the regulation that insurance department hearings “are conducted on an informal basis, in accordance with standards designed to meet the purposes to be accomplished by the proceeding”; Regs., Conn. State Agencies § 38-4-8; this proceeding was held with the utmost administrative formality.

There was a detailed notice of the hearing, which stated the charges to be heard. The hearing was held over three days. Counsel were permitted opening remarks. There was an orderly presentation of evidence, both oral and documentary, from both sides. Full opportunity to examine and cross-examine all witnesses was provided, as well as the opportunity to object to testimony and exhibits. Counsel were permitted final oral arguments and filed extensive briefs. The majority ignores the fundamental principle that a vagueness challenge to a statute or regulation must be viewed, not on the face of the language in question, but as it applies to the facts of the case. Jack v. Scanlon, 4 Conn. App. 451, 456-57, 495 A.2d 1084, cert. dismissed, 197 Conn. 808, 499 A.2d 59 (1985).

I therefore dissent.

Subsequent to the administrative hearing in this case the insurance commissioner promulgated more detailed and comprehensive regulations to replace § 38-4-8. See Regs., Conn. State Agencies §§ 38-4-6 through 38-4-74.