State v. Jodi D. ( 2021 )

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motions and petitions for certification is the ‘‘officially
released’’ date appearing in the opinion.
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of a technical nature prior to publication in the
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STATE v. JODI D.—CONCURRENCE AND DISSENT
MULLINS, J., with whom KAHN, J., joins, concurring
in part and dissenting in part. I agree with the majority
that General Statutes §§ 53a-60b (a) (1) and 1-1f (b) are
not unconstitutionally vague as applied to the conduct
of the defendant, Jodi D. I disagree with the majority
that the issue of whether § 53a-60b (a) (1) is unconstitu-
tionally overinclusive is properly before us. Unlike the
majority, I conclude that it is not.
Specifically, I do not believe that the defendant has
raised the distinct claim that § 53a-60b (a) (1) is uncon-
stitutional under the overinclusiveness doctrine. In fact,
overinclusiveness typically is part of the rational basis
test applied to an equal protection challenge. See, e.g.,
State v. Higgins, 265 Conn. 35, 68–69, 826 A.2d 1126(2003) (discussing, as part of equal protection claim
analysis, whether defendant raised claim that statute
is underinclusive or overinclusive). In the present case,
the defendant challenged the statute only as void for
vagueness as applied to her conduct. Thus, she had to
demonstrate, under the facts of this case, either ‘‘(1)
[that] the statute does not provide fair warning that it
applies to the conduct at issue, or (2) that [s]he was
the victim of arbitrary enforcement practices.’’ (Internal
quotation marks omitted.) Rocque v. Farricielli, 269
Conn. 187, 206, 848 A.2d 1206 (2004).
The question before us, then, is whether the defen-
dant’s conduct—assaulting a person with fibromyalgia
and chronic pain—falls within the statute’s core of pro-
hibited conduct. The majority concludes, and I agree,
that the defendant’s conduct clearly does. In my view,
it is not proper to then search for and posit other scenar-
ios in which the statute might possibly be unconstitu-
tional. Consequently, the majority’s hypotheticals,
including its Olympic boxer with migraines hypotheti-
cal, are inapposite in the context of the defendant’s
claim that the statute is unconstitutionally vague as
applied to her conduct. See footnote 12 of the majority
opinion and accompanying text. The defendant did not
raise a separate claim under the overinclusiveness doc-
trine before the Appellate Court, in her petition for
certification to appeal to this court, or in her brief to
this court. Therefore, I disagree with the majority’s
reframing of the defendant’s vagueness claim to include
a distinctly separate overinclusiveness challenge.1
Accordingly, I would not address whether § 53a-60b
(a) (1) is unconstitutionally overinclusive. Instead, I
would conclude that § 53a-60b (a) (1) is not unconstitu-
tionally vague as applied to the defendant’s conduct.
As a result, I would reach the second certified issue
and agree with the Appellate Court that the evidence
was sufficient to establish that the victim suffered from
a physical disability within the meaning of § 53a-60b
(a) (1).2 See State v. Dojnia, 190 Conn. App. 353, 378,
210 A.3d 586 (2019). Therefore, I would affirm the judg-
ment of the Appellate Court.
In the present case, the defendant claims that the
statute violates her due process rights because it is
unconstitutionally vague as applied to her conduct. The
majority engages in a thorough and well reasoned analy-
sis of that claim and correctly concludes, with respect
to notice, ‘‘that [§§ 53a-60b (a) (1) and 1-1f (b)] are
sufficiently clear to give notice to a person of ordinary
intelligence that the victim was physically disabled for
purposes of § 53a-60b (a) (1) . . . .’’
As to arbitrary enforcement, the majority also rejects
the defendant’s claim that § 53a-60b (a) (1) is unconsti-
tutional because it confers unfettered discretion on
police officers and prosecutors to determine what con-
duct falls within its scope. Indeed, the majority con-
cludes that ‘‘a statute that is sufficiently clear to give
a person of common intelligence notice of what is pro-
hibited necessarily is sufficiently clear to cabin the dis-
cretion of police officers and prosecutors within consti-
tutional limits.’’
Notwithstanding these conclusions, the majority
culls from different portions of the defendant’s brief a
claim under the overinclusiveness doctrine. For
instance, the majority relies on the defendant’s argu-
ment that ‘‘the statute fails to provide a sufficient nexus
between fibromyalgia and/or other chronic pain issues
and protecting people with those conditions from
opportunistic criminals seeking to attack people [who
are] less likely to be able to ward off such attacks.’’
The majority also uses the defendant’s reliance on the
legislative history of § 53a-60b (a) (1) and her argument
that the statute improperly incorporated ‘‘wholesale the
intentionally broad, remedial definition of ‘physically
disabled’ in the criminal context’’ to support its conclu-
sion that the defendant raised a separate claim under
the overinclusiveness doctrine.
These arguments do not reveal a separate overinclu-
siveness claim. Rather, these are the defendant’s argu-
ments in support of her vagueness as applied claim. The
defendant’s able counsel described it as a vagueness
challenge. Specifically, the defendant asserted that the
lack of clarity as to what constituted physical disability
under § 53a-60b (a) (1) leads to (1) lack of notice, and
(2) arbitrary enforcement. The majority’s conclusion
that the statute was clear and that there was no arbitrary
enforcement fully addresses and resolves the claim
raised by the defendant and should end the analysis.
Instead, the majority reframes the defendant’s argu-
ments into a separate overinclusiveness claim. The
majority explains that, ‘‘although the defendant frames
this claim as implicating the vagueness doctrine, it more
properly is characterized as a claim that § 53a-60b (a)
(1) is unconstitutionally overinclusive. . . . In other
words, the defendant effectively contends that the stat-
ute violates substantive due process principles because
many of its clear applications are not rationally related
to a legitimate government purpose.’’ (Citations omit-
ted; emphasis omitted.) I disagree with the majority’s
decision to reframe the arguments that the defendant
made within her vagueness challenge and to treat them
as a properly raised claim under the overinclusiveness
doctrine.
The majority states that the defendant merely failed
to ‘‘label her argument using the correct technical rubric
. . . .’’ Footnote 6 of the majority opinion. This is just
simply not the case. The defendant raised and briefed
only a vagueness as applied challenge. Indeed, this court
has previously explained that ‘‘[t]he void for vagueness
doctrine is a procedural due process concept that origi-
nally was derived from the guarantees of due process
contained in the fifth and fourteenth amendments to
the United States constitution.’’ Packer v. Board of Edu-
cation, 246 Conn. 89, 98, 717 A.2d 117 (1998). Thus, the
overinclusiveness doctrine is part of a separate legal
claim that was not raised by the defendant.
This court has consistently concluded that it ‘‘will
not review a claim unless it was distinctly raised at
trial. . . . We may, however, review legal arguments
that differ from those raised before the trial court if they
are subsumed within or intertwined with arguments
related to the legal claim raised at trial.’’ (Citations
omitted.) Crawford v. Commissioner of Correction,
294 Conn. 165, 203, 982 A.2d 620 (2009). The majority’s
reframing of the defendant’s arguments into a separate
overinclusiveness claim under different constitutional
protections breaches this well established principle.
I can find no reference to overinclusiveness in the
defendant’s brief to the Appellate Court or this court,
and the Appellate Court did not address the claim of
overinclusiveness whatsoever. The majority points to
language in the defendant’s Appellate Court brief that
was used in the context of her claim that § 53a-60b
(a) (1) is unconstitutionally vague. In particular, the
defendant argued ‘‘that ordinary people cannot under-
stand what specifically constitutes ‘physically disabled’
. . . .’’ This is a claim directly tied to the notice prong
of the vagueness challenge, not an overinclusiveness
challenge. The majority also relies on the defendant’s
claim that, although ‘‘the legislature intended to
enhance penalties [only] for crimes against the most
vulnerable, including those with clearly diagnosable
and severe disabilities,’’ §§ 53a-60b (a) (1) and 1-1f (b)
‘‘arguably . . . could apply to nearly all victims.’’ This
is an argument directed at a claim of arbitrary enforce-
ment. I disagree that either of these arguments in the
defendant’s Appellate Court brief constitutes a separate
claim under the overinclusiveness doctrine.
Indeed, in her brief to this court, the defendant did
not cite to any cases that involved claims under the
overinclusiveness doctrine. Instead, she relied on
Packer v. Board of Education, supra, 246 Conn. 109–10,
in support of her argument that the application of § 53a-
60b (a) (1) to fibromyalgia did not have a sufficient
nexus to the legislative purpose of the statute. Packer
did not involve a claim of overinclusiveness. Instead,
Packer involved, among other things, a vagueness as
applied challenge. See id., 106–113. In Packer, this court
considered whether there was a nexus between the
legislative purpose behind a statute and the conduct
prosecuted under the statute for purposes of determin-
ing whether there was adequate notice under a
vagueness as applied analysis. See id., 109–10 (‘‘[w]e
further conclude . . . that a person of ordinary intelli-
gence, apprised only of the language of [General Stat-
utes (Rev. to 1997)] § 10-233d (a) (1) and our prior
interpretation . . . of similar language, could not be
reasonably certain whether possession of marijuana in
the trunk of a car, off the school grounds [and] after
school hours, is, by itself and without some tangible
nexus to school operation, seriously disruptive of the
educational process as required by [that statute] in
order to subject a student to expulsion’’ (emphasis omit-
ted; internal quotation marks omitted)). The defen-
dant’s reliance on Packer further confirms that she
raised only a vagueness challenge here.
Of course, we did not certify any overinclusiveness
claim. The majority recognizes this as an issue. How-
ever, notwithstanding that substantial stumbling block,
the majority explains that ‘‘[w]e recognize that this issue
may be outside the scope of the certified questions
because overinclusiveness and vagueness are distinct
concepts. Nevertheless, we address the issue because
the defendant raised it before the Appellate Court and
it is closely intertwined with the certified questions.’’
Footnote 1 of the majority opinion. I disagree.
To be clear, the only questions we certified were
limited to the following: (1) ‘‘Did the Appellate Court
correctly conclude that . . . §§ 1-1f (b) and 53a-60b (a)
(1) were not unconstitutionally vague as applied to the
defendant?’’ And (2) ‘‘[d]id the Appellate Court correctly
conclude that the evidence the state presented at trial
was sufficient to prove beyond a reasonable doubt that
the victim was ‘physically disabled’ under the governing
statutes?’’ State v. Dojnia, 333 Conn. 914, 215 A.3d 1211(2019). As I previously mentioned, I do not believe that
overinclusiveness was raised before the Appellate
Court, but, even if the defendant had raised it before
the Appellate Court, that court did not address it, and
we did not certify such a claim.
Furthermore, I disagree with the majority that the
question of whether § 53a-60b (a) (1) is unconstitution-
ally overinclusive is closely intertwined with the certi-
fied questions in the present appeal such that the issue
is properly before us. The question of whether a statute
is overinclusive is not part of the analysis used to deter-
mine whether a statute is unconstitutionally vague as
applied to a particular defendant’s conduct in a particu-
lar case. Instead, the question of whether a statute is
overinclusive is typically part of the analysis used when
applying the rational basis test to an equal protection
claim. See, e.g., Vance v. Bradley, 440 U.S. 93, 108–109,
99 S. Ct. 939, 59 L. Ed. 2d 171 (1979) (considering
whether statute violates equal protection clause
because it is underinclusive or overinclusive); Big Tyme
Investments, LLC v. Edwards, 985 F.3d 456, 470 (5th
Cir. 2021) (concluding that ‘‘[i]mperfect classifications
that are underinclusive or overinclusive pass constitu-
tional muster’’ under equal protection clause).
Indeed, most of the cases cited by the majority con-
sidered whether a statute is overinclusive as part of
an equal protection claim analysis. See, e.g., State v.
Higgins, supra, 265 Conn. 69; see also, e.g., United
States v. Thornton, 901 F.2d 738, 739–40 (9th Cir. 1990)
(addressing defendants’ claim that statute violated
equal protection clause because it was both overinclu-
sive and underinclusive). In one of the cases relied on
by the majority, People v. Rodriguez, 66 Cal. App. 4th
157, 77 Cal. Rptr. 2d 676 (1998), the court explicitly
detailed that ‘‘[the] [d]efendant’s reliance [on a claim
of overinclusiveness] appears misplaced, inasmuch as
Justice Kline’s comments [in a prior decision] about
overinclusiveness and underinclusiveness appear
directed more toward questions of equal protection
than substantive due process.’’ Id., 179, citing People v.
Bostick, 46 Cal. App. 4th 287, 292, 53 Cal. Rptr. 2d 760(1996) (Kline, P. J., concurring). In the present case,
the defendant does not assert any claim under the equal
protection clause.
To be sure, ‘‘[t]he general rule is that the constitution-
ality of a statutory provision being attacked as void for
vagueness is determined by the statute’s applicability
to the particular facts at issue. . . . To do otherwise,
[in the absence of] the appearance that the statute in
question intrudes [on] fundamental guarantees, particu-
larly first amendment freedoms, would be to put courts
in the undesirable position of considering every con-
ceivable situation which might possibly arise in the
application of [the statute]. . . . Thus, outside the con-
text of the first amendment, in order to challenge suc-
cessfully the facial validity of a statute, a party is
required to demonstrate as a threshold matter that the
statute may not be applied constitutionally to the facts
of [the] case.’’ (Citations omitted; footnote omitted;
internal quotation marks omitted.) Packer v. Board of
Education, supra, 246 Conn. 105–106.
In the present case, the defendant’s claim does not
implicate her first amendment rights, and, therefore, in
order to be successful in her challenge to the validity
of § 53a-60b (a) (1), she must demonstrate that the
statute may not be applied constitutionally to the facts
of this case. Here, she is accused of assault on a person
with fibromyalgia and chronic pain. The statute is not
vague as applied to that conduct. There is no need to
look beyond her conduct to the hypotheticals posed by
the majority. Because I agree with the majority that
the defendant has not established that the statute is
unconstitutional as applied to the facts of the present
case, I would not attempt to ‘‘[consider] every conceiv-
able situation which might possibly arise in the applica-
tion of [the statute].’’ (Internal quotation marks omit-
ted.) Id., 106.
In addition, even if I were to agree with the majority
that the defendant raised a separate claim that § 53a-
60b (a) (1) is unconstitutionally overinclusive as part
of a substantive due process claim, I would disagree
with the majority’s analysis of that claim. Although the
majority cites to a few cases in which courts have con-
sidered a claim of overinclusiveness as part of a sub-
stantive due process claim, I find these cases unpersua-
sive. As one of those cases pointed out, ‘‘a statute is
not fatally infirm merely because it may be somewhat
underinclusive or overinclusive.’’ (Internal quotation
marks omitted.) People v. Avila-Briones, 49 N.E.3d 428,
450 (Ill. App. 2015), appeal denied, 48 N.E.3d 1093 (Ill.
2016). Those cases support the conclusion that, even
if the statute is overinclusive—that is, it may impose a
burden on one who harms someone with a latent physi-
cal disability—it still has a rational relationship to pro-
tecting those with physical disabilities. Therefore, when
a statute serves a legitimate government purpose—
here, protecting those with physical disabilities—any
fine-tuning of the statutory scheme to narrow its reach
is a task for the legislature.
Moreover, because we are not dealing with a funda-
mental right, the rational basis test would apply in the
present case. Id., 447 (‘‘[i]f the statute does not impact
a fundamental right, then we apply the [rational basis]
test to the statute’’). ‘‘[W]hen conducting rational basis
review we will not overturn such [government action]
unless the varying treatment of different groups or per-
sons is so unrelated to the achievement of any combina-
tion of legitimate purposes that we can only conclude
that the [government’s] actions were irrational.’’ (Inter-
nal quotation marks omitted.) Kimel v. Florida Board
of Regents, 528 U.S. 62, 84, 120 S. Ct. 631, 145 L. Ed.
2d 522 (2000). ‘‘On rational basis review, those attacking
the rationality of the legislative classification have the
burden to negative every conceivable basis which might
support it. . . . Ordinarily, that burden is insurmount-
able. [C]ourts are compelled under [a rational basis]
review to accept a legislature’s generalizations even
when there is an imperfect fit between means and ends.
A classification does not fail rational basis review
because it is not made with mathematical nicety or
because in practice it results in some inequality. . . .
Thus, the fact that a statute is overinclusive or [underin-
clusive], standing alone, does not render the statute
constitutionally invalid.’’ (Citations omitted; internal
quotation marks omitted.) State Troopers Non-Com-
missioned Officers Assn. of New Jersey v. New Jersey,
643 F. Supp. 2d 615, 624 (D.N.J. 2009), aff’d, 399 Fed.
Appx. 752 (3d Cir. 2010).
Despite these aforementioned principles, the major-
ity does little more than point to hypotheticals in which
§ 53a-60b (a) (1) could be considered overinclusive.
It posits a hypothetical about an Olympic boxer with
migraines and concludes that the statute is unconstitu-
tionally overinclusive because ‘‘such an application of
the statute would have no reasonable and substantial
relation to the statute’s purpose of protecting those
who have a diminished capacity to defend themselves
or who are particularly vulnerable to injury.’’ This is
not how we assess the constitutionality of a statute
under rational basis review. Rather, it is well established
that, ‘‘if a statute can be upheld under any plausible
justification offered by the state, or even hypothesized
by the court, it survives [rational basis] scrutiny.’’ Amer-
ican Express Travel Related Services Co. v. Kentucky,
641 F.3d 685, 690 (6th Cir. 2011).
Thus, on the basis of the record before us, I cannot
conclude that the legislature acted irrationally in provid-
ing for a heightened punishment of an individual who
assaults someone with a physical disability. Even if
§ 53a-60b (a) (1) lacks mathematical nicety in its appli-
cation, the statute still has a rational relationship to
a legitimate government purpose—namely, protecting
people with physical disabilities that diminish their abil-
ity to function. Because there are plausible justifica-
tions for upholding the constitutionality of this stat-
ute—we need look no further than the case at hand, in
which a person with fibromyalgia and chronic pain is
assaulted—there is a rational relationship to the legisla-
tive purpose of protecting physically disabled people.
The majority’s view turns rational basis review on its
head because, instead of negating every conceivable
basis that might support the statute, the majority looks
to find conceivable examples of how the statute may
be overinclusive. Examples of overinclusiveness, how-
ever, do not render statutes unconstitutional.
Accordingly, in the absence of the defendant’s raising
and analyzing a distinct legal claim of overinclusive-
ness, I would not read a separate equal protection or
substantive due process overinclusiveness claim into
the defendant’s vagueness challenge. Rather, I conclude
that the majority’s analysis of overinclusiveness is mis-
placed. Moreover, even if I were to agree with the major-
ity that the defendant raised a claim under the overinclu-
siveness doctrine, I disagree that the statute fails
rational basis review.
I am mindful that ‘‘legislative enactments carry with
them a strong presumption of constitutionality, and that
a party challenging the constitutionality of a validly
enacted statute bears the heavy burden of proving the
statute unconstitutional beyond a reasonable doubt
. . . .’’ (Citations omitted; internal quotation marks
omitted.) Packer v. Board of Education, supra, 246
Conn. 101–102. I cannot conclude that the defendant
has met her heavy burden in the present case.
Accordingly, I would affirm the judgment of the
Appellate Court.
For the reasons I previously explained, I respectfully
dissent in part.
1
The majority points out that I cite to ‘‘no authority for the proposition
that a claim that has been distinctly raised is unreviewable because the
party making the claim did not attach the correct doctrinal label . . . .’’
Footnote 6 of the majority opinion. That is true but also irrelevant. Because
I do not believe that the defendant raised a separate overinclusiveness claim
in the first instance, either before the Appellate Court or in the petition for
certification, I see no reason to supply support for a proposition I am
not making.
2
Because I conclude that the defendant’s sufficiency claim was resolved
properly in the Appellate Court’s well reasoned opinion, and that opinion
fully addresses that claim; see State v. Dojnia, 190 Conn. App. 353, 371–78,
210 A.3d 586 (2019); it would serve no useful purpose for me to repeat the
discussion contained therein.