Williamson et al v. Psychiatric Security Review Board

Filing 26

MEMORANDUM OF DECISION Denying as Futile Leave to Amend the Complaint. See the attached Memorandum of Decision. The Clerk is directed to enter judgment against the Plaintiffs and to close this case. Signed by Judge Vanessa L. Bryant on 8/13/14.(Ives, D)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

DANIEL WILLIAMSON, MELODY
WILLIAMSON, HANNAH WILLIAMSON,
GORDON WILLIAMSON, BARBARA
WILLIAMSON, and DANE WILLIAMSON,
Plaintiffs,

:
:
:
:
:
:
v.
:
:
PSYCHIATRIC SECURITY REVIEW BOARD, :
Defendant.
:

CIVIL ACTION NO.
3:13-CV-00578 (VLB)

August 13, 2014

MEMORANDUM OF DECISION DENYING AS FUTILE LEAVE TO AMEND
COMPLAINT

I.

Introduction
Plaintiffs Daniel, Melody, Hannah, Gordon, Barbara, and Dane Williamson

bring this action against the Defendant Psychiatric Security Review Board
(“PSRB” or “Board”), for alleged violations of their Fifth and Fourteenth
Amendment rights to Procedural Due Process and Equal Protection. The Court
previously granted the Defendant’s motion to dismiss this action pursuant to the
State of Connecticut’s Eleventh Amendment sovereign immunity but did not, in
that opinion, address the Defendant’s additional arguments pursuant to Federal
Rule of Civil Procedure 12(b)(6) or address the Plaintiffs’ inability to amend their
complaint due to futility. The Court articulates here why Plaintiffs’ other
arguments are unavailing and the reasons why amending the Complaint would be
futile. Briefly, amendment to name the correct defendant will not cure the
Plaintiffs’ inability to prevail on their Procedural Due Process and Equal
1

Protection claims; the Plaintiffs cannot address the legal deficiencies in their
claims by alleging additional facts sufficient to support them. In other words,
even if this Court had jurisdiction over the Plaintiffs’ claims, which it may have in
the event that Plaintiffs were allowed to amend their operative complaint to name
the correct defendant, the Court would grant dismissal of Plaintiffs’ claims
pursuant to Rule 12(b)(6) and would deny Plaintiffs’ Motions for Declaratory
Judgment and Preliminary Injunction. Further amendment of the complaint
would likewise be futile because the Plaintiffs cannot address the deficiencies in
their due process and equal protection claims such that their claims could remain
viable.
II.

Factual Background
a. Connecticut’s Insanity Defense and the PSRB Generally
The PSRB is an autonomous body within the Department of Mental Health

and Addiction Services which consists of six members: a psychiatrist
experienced with the criminal justice system, a psychologist experienced with the
criminal justice system, a person with substantial experience in the process of
probation, an attorney barred in Connecticut, a member of the public with
substantial experience in victim advocacy, and a member of the general public.
Conn. Gen. Stat. § 17a-581(a), (b). Connecticut statute allows a criminal
defendant to assert as an affirmative defense that he “lacked substantial
capacity, as a result of mental disease or defect, either to appreciate the
wrongfulness of his conduct or to control his conduct within the requirements of
the law.” Conn. Gen. Stat. § 53a-13(a). If a defendant is found not guilty by
2

reason of mental disease or defect, after a hearing in which the court must make
a finding as to the mental condition of the acquittee, and considering as its
primary concern the protection of society, the court may order that the acquittee
be committed to the jurisdiction of the PSRB for a term not to exceed the
maximum sentence that could have been imposed if the acquittee had been
convicted of the offense for which he was tried. Conn. Gen. Stat. § 17a-582(e)(1).
The PSRB must conduct an initial hearing to review the acquittee’s status
within ninety days of his commitment by the court and must conduct a review
hearing at least once every two years thereafter. Conn. Gen. Stat. §§ 17a-583(a),
17a-585. At any hearing conducted by the PSRB during which discharge,
conditional release, or confinement of the acquittee is considered the PSRB must
make a finding as to the mental condition of the acquittee and, “considering that
its primary concern is the protection of society,” must either (1) recommend the
acquittee’s discharge to the court; (2) order the acquittee conditionally released
subject to such conditions as are necessary to prevent the acquittee from
constituting a danger to himself or others; or (3) order the acquittee confined (or
to continue to be confined) in a hospital for psychiatric disabilities or placed with
the Commissioner of Developmental Services for custody, care and treatment.
Conn. Gen. Stat. § 17a-584. PSRB hearings are open to the public and the
acquittee bears the “burden of proving by a preponderance of the evidence the
existence of conditions warranting a less restrictive order” than the order thencurrently in place. Conn. Gen. Stat. § 17a-596(d), (f).

3

The PSRB may permit an acquittee confined to a psychiatric hospital to
take temporarily leave of the hospital premises, subject to conditions and
supervision as set by the PSRB, if it concludes that the acquittee’s temporary
leave, under the specified conditions, would not constitute a danger to himself or
others. Conn. Gen. Stat. § 17a-587(a). The PSRB may also, after a hearing, grant
an acquittee conditional release for supervision and treatment on an outpatient
basis, subject to conditions set by the Board. Conn. Gen. Stat. §§ 17a-588(a), 589,
580(3). The Board may, after a hearing, modify an acquittee’s conditions of
conditional release. Conn. Gen. Stat. § 17a-591(a). An acquittee eligible for
conditional release is one whose “final discharge would constitute a danger to
himself or others but who can be adequately controlled with available supervision
and treatment on conditional release.” Conn. Gen. Stat. § 17a-580(9). “Danger to
self or others” is defined as “the risk of imminent physical injury to others or self,
and also includes the risk of loss or destruction of the property of others.” Regs.
Conn. State Agencies § 17a-581-2(6).
An acquittee remains under the jurisdiction of the PSRB during any term of
commitment and until discharged by the court. Conn. Gen. Stat. § 17a-582(h).
The committing court must hold a hearing on any acquittee request or PSRB
recommendation to the court for discharge, and the acquittee bears the burden of
proving by a preponderance of the evidence that he or she does not have
psychiatric disabilities to the extent that discharge would constitute a danger to
him or herself or others. Conn. Gen. Stat. §§ 17a-593(f), (g), 580(11). If an
acquittee remains a person with psychiatric disabilities to the extent that his
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discharge at the end of his maximum term of commitment would pose a danger to
himself or others, the committing court may issue an order of continued
commitment. Conn. Gen. Stat. § 17a-593(c).
b. Facts of this Case
On January 2, 1998, David Messenger killed his pregnant wife, Heather
Williamson Messenger, in their Chaplin, Connecticut home in front of the couple’s
then five-year-old son, Dane. [Dkt. 21, Am. Compl. ¶1]. On November 21, 2001,
David Messenger was adjudicated not guilty by reason of mental defect or
disease and remanded to the State of Connecticut for treatment. [Id. at ¶8].
Dan Williamson and his wife Melody, Heather Williamson Messenger’s
brother and sister-in-law, raised Dane, who now goes by Dane Williamson. [Id. at
¶2]. Dane has suffered severe emotional trauma resulting from the above events.
[Id. at ¶11]. Barbara Williamson is Heather’s mother, and Hannah and Gordon
Williamson are her siblings. [Id. at ¶¶3-5]. None of the plaintiffs reside in
Connecticut. They assert that if David Messenger is released into the community,
“it will cause anxiety, stress, and emotional distress to Plaintiffs, especially for
Plaintiff Dane Williamson.” [Id. at ¶16].
The Plaintiffs have brought this action for alleged violations of their rights
during various Psychiatric Security Review Board hearings for the consideration
of David Messenger’s conditional release. [Id. at ¶12]. Specifically, they allege
that at a hearing on May 1, 2009 they appeared through counsel, John Klar, who
attempted but was not allowed to make certain observations about the
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evidentiary record.1 [Id. at ¶13]. Moments before the commencement of a
November 18, 2011 hearing, counsel John Klar was required by PSRB Director
Ellen LaChance to demonstrate that he had the authority to represent Dane
Williamson, which the Plaintiffs claim constitutes “an intrusion into the attorneyclient relationship,” and the PSRB also indicated that Klar could not speak on
behalf of victims who had already submitted a written statement. [Id. at ¶14].
Finally, at a May 3, 2013 hearing, the plaintiffs allege that “Dane Williamson was
permitted by the PSRB solely to speak in person, or by written statement, and
was denied the ability to address the Defendant PSRB through legal counsel of
his choosing.” [Id. at ¶15].
Plaintiffs allege that the State of Connecticut’s statutes governing the
Psychiatric Security Review Board and the hearings it holds, either facially or as
applied, “do not protect the fundamental rights of victims such as Plaintiffs under
the Due Process and Equal Protection Clauses.” [Id. at ¶17]. First, they claim
that their right to present a victim statement pursuant to state statute and PSRB
regulation 17a-581-42 was abridged at the May 1, 2009 and November 18, 2011
PSRB hearings, thereby violating their right to Due Process in that they were
denied their right to allocution and counsel. [Id. at ¶¶18-21]. Second, they claim
that the violations of their rights to allocution and counsel have
unconstitutionally infringed on their rights to Equal Protection, “because these
restrictions are not imposed on victims who participate in the criminal justice
system. Victims of crimes in which the perpetrator is adjudicated to be not guilty

1

There is no allegation that any of the Plaintiffs appeared in person at this
meeting.
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by reason of mental illness or disease, are afforded disparate and inferior
constitutional protections under existing Connecticut law, which disparity is not
justified by a rational state interest.” [Id. at ¶25].
Third, the Plaintiffs claim that the PSRB’s limitations in consideration of an
acquittee’s danger with regard to his potential for conditional release, defined as
“the risk of imminent physical injury to others or self” and which “also includes
the risk of loss or destruction of the property of others,” violates their Due
Process rights in that it unconstitutionally prohibits the PSRB from considering
evidence of the risk of non-imminent danger to self and others, including
evidence of the risk of non-physical injury such as anxiety to the Plaintiffs caused
by the acquittee’s release. [Id. at ¶¶26-29]. Lastly, the Plaintiffs allege that these
restrictions on consideration of the Plaintiffs’ non-physical injury infringe their
rights to Equal Protection, as “these restrictions are not imposed on victims who
participate in the criminal justice system.” [Id. at ¶33].
III.

Standard of Review
Federal Rule of Civil Procedure 15, which governs Amended and

Supplemental Pleadings, provides that a party may amend a pleading at this
juncture “only with the opposing party's written consent or with the court's
leave,” which should be freely given “when justice so requires.” Fed. R. Civ. P.
15(a)(2). However, “it is within the sound discretion of the district court to grant
or deny leave to amend.” McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200
(2d Cir. 2007). A court should deny leave to amend only upon a showing of

7

“undue delay, bad faith or dilatory motive on the part of the movant, repeated
failure to cure deficiencies by amendments previously allowed, undue prejudice
to the opposing party by virtue of allowance of the amendment, [or] futility of
amendment.” Foman v. Davis, 371 U.S. 178, 182 (1962); Dougherty v. Town of N.
Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 87 (2d Cir. 2002) (same).
“Granting leave to amend is futile if it appears that plaintiff cannot address the
deficiencies identified by the court and allege facts sufficient to support the
claim.” Panther Partners Inc. v. Ikanos Commc'ns, Inc., 347 F. App'x 617, 622 (2d
Cir. 2009). A proposed amendment is also futile if it could not withstand a motion
to dismiss pursuant to Rule 12(b)(6). Dougherty, 282 F.3d at 88. See also Basile
v. Connolly, 538 F. App’x 5, 8 (2d Cir. Sept. 3, 2013) (“while a district court
generally should not dismiss a pro se complaint without granting the plaintiff
leave to amend, such leave is not necessary when it would be futile.”).
“‘To survive a motion to dismiss [pursuant to Rule 12(b)(6)], a complaint
must contain sufficient factual matter, accepted as true, to state a claim to relief
that is plausible on its face.’” Sarmiento v. U.S., 678 F.3d 147 (2d Cir. 2012)
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). While Rule 8 does not
require detailed factual allegations, “[a] pleading that offers ‘labels and
conclusions’ or ‘formulaic recitation of the elements of a cause of action will not
do.’ Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of
‘further factual enhancement.’” Iqbal, 556 U.S. at 678 (citations and internal
quotations omitted). “Where a complaint pleads facts that are ‘merely consistent
with’ a defendant's liability, it ‘stops short of the line between possibility and

8

plausibility of ‘entitlement to relief.’ ” Id. (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 557 (2007)). “A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. (internal citations omitted).
In considering a motion to dismiss for failure to state a claim, the Court
should follow a “two-pronged approach” to evaluate the sufficiency of the
complaint. Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir. 2010). “A court ‘can
choose to begin by identifying pleadings that, because they are no more than
conclusions, are not entitled to the assumption of truth.’” Id. (quoting Iqbal, 556
U.S. at 679). “At the second step, a court should determine whether the ‘wellpleaded factual allegations,’ assumed to be true, ‘plausibly give rise to an
entitlement to relief.’” Id. (quoting Iqbal, 556 U.S. at 679). “The plausibility
standard is not akin to a probability requirement, but it asks for more than a sheer
possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (internal
quotations omitted).
In general, the Court’s review on a motion to dismiss pursuant to Rule
12(b)(6) “is limited to the facts as asserted within the four corners of the
complaint, the documents attached to the complaint as exhibits, and any
documents incorporated in the complaint by reference.” McCarthy v. Dun &
Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007). The Court may also consider
“matters of which judicial notice may be taken” and “documents either in
plaintiffs' possession or of which plaintiffs had knowledge and relied on in
bringing suit.” Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir.1993);
9

Patrowicz v. Transamerica HomeFirst, Inc., 359 F. Supp. 2d 140, 144 (D. Conn.
2005)(MRK). Here, the Plaintiffs have filed a Motion for Declaratory Judgment, a
Motion for Preliminary Injunction, and a Motion to Dismiss in which they refer and
to which they have attached various exhibits, including transcripts of PSRB
hearings. The Court will consider these attachments and the arguments made in
the Plaintiffs’ motions.
IV.

Analysis
The Plaintiffs’ Due Process and Equal Protection claims would not survive

a motion pursuant to Rule 12(b)(6) and no amendment of these claims could cure
their deficiencies. Thus, amendment of the Plaintiffs’ complaint to name the
correct municipal officer defendant would be futile, as the deficiencies in the
Plaintiffs’ due process and equal protection claims cannot be cured.
a. Procedural Due Process
The Plaintiffs claim that they have been subjected to a series of continuing
violations of their rights to due process by the PSRB, which has allegedly
deprived them of the right to speak at PSRB hearings and the right to counsel.
They also allege that the Connecticut statutes and regulations applicable to the
PSRB facially or as applied violate the Constitution’s guarantee of procedural
Due Process. The Defendant PSRB argues in its motion to dismiss that the
Plaintiffs have articulated no protected liberty interest such that they are entitled
to due process at PSRB hearings. [Dkt. 20-1, MTD p. 18]. Plaintiffs counter that
they have asserted a protected liberty interest, classifying this interest in
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separate places in their opposition to the Motion to Dismiss as a liberty interest in
“having the man who killed your mother, sister, or child released without due
consideration of its impact on your mental state,” an interest in “that David
Messenger’s release will impact them emotionally, and may threaten their
physical safety,” and a liberty interest in “Plaintiff(s)’ mental health, and physical
and emotional well-being.” [Dkt. 23-1, Ps’ Opp. to MTD pp. 4, 8-9, 12]. Although
the PSRB has moved to dismiss this case on substantive due process grounds
(in the event that the Eleventh Amendment did not bar Plaintiffs’ claims entirely),
the Plaintiffs have countered that their suit implicates only procedural due
process, and thus they make no substantive due process arguments.2
The Fourteenth Amendment to the United States Constitution provides, in
relevant part, that “[n]o State shall … deprive any person of life, liberty, or
property, without due process of law...” U.S. CONST. Amend. XIV. “Procedural
due process imposes constraints on governmental decisions which deprive
individuals of ‘liberty’ or ‘property’ interests within the meaning of the Due
Process Clause of the Fifth or Fourteenth Amendment.” Mathews v. Eldridge, 424
U.S. 319, 332 (1976). “In procedural due process claims, the deprivation by state

2

“These Plaintiffs allege procedural due process violations in the PSRB process,
whereby they have been deprived of the opportunity to: present evidence of
emotional as opposed to physical threat by the acquittee’s release; present
evidence of longer term or future threat posed by the acquittee’s release, as
opposed merely to ‘imminent’ threat; be fairly and fully represented by counsel;
comment on evidence relevant to the acquittee’s threat to public or victim safety.
Nor have Plaintiffs been afforded notice or a hearing regarding these
interferences with their rights.” [Dkt. 23-1, Ps’ Opp. to MTD, pp. 1-2]. The
Plaintiffs also assert that they “have established well-pleaded violations by
Defendant of their procedural due process rights; they are not required to
establish a substantive due process claim, for money damages or otherwise,
against the Defendant.” [Id. at 19-20].
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action of a constitutionally protected interest in ‘life, liberty, or property’ is not in
itself unconstitutional; what is unconstitutional is the deprivation of such an
interest without due process of law.” Zinermon v. Burch, 494 U.S. 113, 125 (1990)
(emphasis in original). Further, “[t]he constitutional violation actionable under §
1983 is not complete when the deprivation occurs; it is not complete unless and
until the State fails to provide due process. Therefore, to determine whether a
constitutional violation has occurred, it is necessary to ask what process the
State provided, and whether it was constitutionally adequate.” Id. at 126. Due
process “is a flexible concept that varies with the particular situation.” Id. at 127.
Courts employ a two-step process for determining whether procedural due
process has been violated: “the first asks whether there exists a liberty or
property interest which has been interfered with by the State; the second
examines whether the procedures attendant upon that deprivation were
constitutionally sufficient.” Kentucky Dep't of Corr. v. Thompson, 490 U.S. 454,
460 (1989).
The types of interests that constitute ‘liberty’ and ‘property’ for
Fourteenth Amendment purposes are not unlimited; the
interest must rise to more than an abstract need or desire, and
must be based on more than a unilateral hope. Rather, an
individual claiming a protected interest must have a legitimate
claim of entitlement to it.
Id. “A liberty interest may arise from either of ‘two sources—the Due Process
Clause itself [or] the laws of the States.’” Rodriguez v. McLoughlin, 214 F.3d 328,
337 (2d Cir. 2000) (quoting Kentucky Dep’t of Corrections, 490 U.S. at 460).
Explaining the liberty interest, the Supreme Court has stated that

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The Due Process Clause guarantees more than fair process,
and the ‘liberty’ it protects includes more than the absence of
physical restraint. The Clause also provides heightened
protection against government interference with certain
fundamental rights and liberty interests. In a long line of
cases, we have held that, in addition to the specific freedoms
protected by the Bill of Rights, the ‘liberty’ specially protected
by the Due Process Clause includes the rights to marry, …; to
have children, …; to direct the education and upbringing of
one's children, …; to marital privacy, …; to use contraception,
…; to bodily integrity, …, and to abortion. We have also
assumed, and strongly suggested, that the Due Process
Clause protects the traditional right to refuse unwanted
lifesaving medical treatment.
Washington v. Glucksberg, 521 U.S. 702, 719-20 (1997) (internal citations omitted).
In sum, for the Plaintiffs to prevail on their Procedural Due Process claims
in this action, they must demonstrate that they have a cognizable liberty or
property interest or fundamental right stemming from either the Due Process
clause or from state law that has been deprived without due process of law.
i. Deprivation of Life, Liberty, or Property
The Plaintiffs here contend that they have a protected liberty interest
stemming directly from the Due Process Clause, rather than from a right granted
to them by Connecticut’s statutes and regulations.3 They allege that they are
constitutionally entitled under the Due Process Clause to be represented by

3

Indeed, in their opposition to the Defendant’s Motion to Dismiss, the Plaintiffs
state that they “do not claim Connecticut General Statutes or the Connecticut
Constitution, or the PSRB Rules, as a source of rights for victims to make impact
statements; they claim Defendant’s process promulgated thereunder
unconstitutionally restricts basic victims’ rights (facially or as applied). . . .
Plaintiffs do not claim as a source of these rights some non-existent state law
protection: they are all grounded firmly in causes of action which specifically
invoke the federal Due Process and Equal Protection Clauses, without recourse
to any state-derived right.” [Dkt. 23-1, Ps’ Opp. to MTD, pp. 17-18].
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counsel at PSRB hearings, and that they are constitutionally entitled to be heard
at PSRB hearings, including the ability to comment on evidence presented at the
hearing and to have the PSRB consider evidence of their own future emotional
harm should the acquittee be released. [Dkt. 22, Declaratory Judgment Motion,
§§ a), b), c)]. Plaintiffs allege that these rights have been proscribed by the State
of Connecticut’s statutes and regulations governing the PSRB.
First, the Plaintiffs have not cited to any authority – and the Court can find
none – supporting their claim to a liberty interest springing from the Due Process
Clause, or to any authority suggesting that they have a constitutional,
fundamental right to either be represented by counsel in PSRB hearings or to
present and have the PSRB consider evidence of their own future emotional harm
in determining whether an acquittee is mentally healthy and no longer a danger to
the community. In cursory fashion, the Plaintiffs argue that “[t]he liberty interest
complained of here – having the man who killed your mother, sister, or child
released without due consideration of its impact on your mental state – surely is
at least as much of a liberty interest as a commercial interest such as reputation.”
[Dkt. 23-1, Ps’ Opp. to MTD, pp. 8-9]. They also assert that “Defendant’s Motion to
Dismiss, much like the PSRB Rules, reveals a State that is elevating false
protections for the acquittee above basic protections for victims. Our courts do
not support such a stance.” [Id. at 10]. Plaintiffs further argue that “where
property, money, employment, and reputation have all been acknowledged as
worthy of constitutional protection, it hardly seems that Plaintiffs’ liberty interests
are beneath procedural recognition and protection.” [Id. at 19]. The Plaintiffs,
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however, have failed to cite to any authority supporting their contention that the
“courts do not support such a stance” or that they have a liberty interest inherent
in the Due Process Clause to their mental and emotional well-being that is
breached by them not being allowed to comment on evidence presented at a
post-acquittal hearing. They also have failed to cite any support for their
contentions that their right to counsel, their right to comment on the professional
evidence presented, and their right to have the PSRB consider their future
emotional harm are constitutionally protected in the context of hearings
regarding an acquittee’s mental health and danger to the community.
This problem plagues the Plaintiffs’ Motion for Preliminary Injunction as
well, where the Plaintiffs cite not a single case applying any Procedural Due
Process concept, let alone any case applicable to victims of crime. Instead, the
Plaintiffs argue that victims of crime “must be afforded Constitutional protection”
and that victims of acquittees “possess fewer (if any) rights in administrative or
adjudicative proceedings than victims in criminal proceedings.” [Dkt. 4-4, PI p.
8]. As in their other filings, the Plaintiffs do not explain the rights to which
victims in criminal proceedings are entitled, whether such victims possess rights
in the post-sentencing process, or in what ways these rights differ from those
afforded to the Plaintiffs. While the Connecticut constitution gives crime victims
certain rights in connection with criminal prosecutions, it does not afford crime
victims the right to be heard in post-sentencing proceedings. A crime victim has
only the “right to information about the arrest, conviction, sentence,
imprisonment and release of the accused.” Connecticut Constitution Article 1,
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Section 8(b). That subsection further states that it does not and shall not be
construed as “creating a basis for vacating a conviction or ground for appellate
relief in any criminal case.”
As to the likelihood of success on the merits of their claims or the
demonstration of sufficiently serious questions going to the merits of their
claims, a required element of a preliminary injunction motion, the Plaintiffs
conclusorily allege that their due process rights have been compromised by their
alleged denial of right to counsel and allocution. Nowhere do the Plaintiffs allege
the interest allegedly abridged, explain why they are entitled to Due Process
protection in the first instance, or discuss a single case relating to Due Process
on which this Court could formulate inherent due process rights previously
unenumerated. The Plaintiffs’ Motion for Declaratory Judgment is similarly
lacking.
Second, the Plaintiffs have failed to successfully identify a liberty interest
abridged by the PSRB’s conduct or the law governing it. The Plaintiffs chiefly
contend that, although the state is not obligated to ultimately protect them from
David Messenger, it has deprived them of the only procedural safeguards they
have – the right to be heard in the process that could release him into the
community – which “disables victims from protecting themselves in the only
meaningful legal/administrative process where they might do so,” and prevents
them from presenting evidence as to the emotional harm an acquittee’s release
may have on them. [Dkt. 23-1, Ps’ Opp. to MTD, pp. 23-24].

16

The Plaintiffs’ arguments are flawed. The Plaintiffs do not buttress their
claim with the opinion of an expert with, nor do they claim to have, any expertise
in determining whether or when a mentally ill citizen has regained his sanity such
that he may be conditionally released into the community without endangering
the public at large. Absent such expertise, Plaintiffs fail to show their attorney’s
statements might be relevant and probative. By contrast, the PSRB is made up of
six members: a psychiatrist, a psychologist, a person with substantial experience
in the process of probation, an attorney barred in Connecticut, a member of the
public with substantial experience in victim advocacy, and a member of the
general public. Conn. Gen. Stat. § 17a-581. It is statutorily required to consider,
in rendering a decision on conditional discharge of an acquittee, whether the
acquittee is one whose “final discharge would constitute a danger to himself or
others but who can be adequately controlled with available supervision and
treatment on conditional release.” Conn. Gen. Stat. § 17a-580(9). “Danger to self
or others” is defined as “the risk of imminent physical injury to others or self, and
also includes the risk of loss or destruction of the property of others.” Regs.
Conn. State Agencies § 17a-581-2(6). By alleging a deprivation of a right to be
substantively heard as to information about their own emotional well-being, the
Plaintiffs are injecting into the PSRB’s consideration process an irrelevancy: the
emotional impact an acquittee’s release will have on them. The emotional impact
on the victims, however, has nothing to do with whether an acquittee has
regained his mental health and is fit to be returned to the community. Thus, the
Court cannot conclude that, by not allowing the Plaintiffs to comment on

17

evidence presented at PSRB hearings regarding David Messenger’s mental
health, or by not considering the emotional impact of David Messenger’s
potential release on the Plaintiffs, that the state or its agents “in some way [ ]
assist[s] in creating or increasing the danger to the victim[s]” posed by David
Messenger’s release such that the PSRB hearing would be able to confer an
inherent liberty interest on the Plaintiffs.
Moreover, this Court’s research demonstrates that courts are reluctant to
assign inherent Due Process rights to victims of crime (not committed by
acquittees), whose rights during and after prosecution are limited. See, e.g., Dix
v. Cnty. of Shasta, 963 F.2d 1296, 1298-99 (9th Cir. 1992), overruled on other
grounds, Sandin v. Conner, 515 U.S. 472 (1995) (crime victims did not have liberty
interest derived from Due Process Clause in becoming involved in the
prosecution and sentencing of a criminal defendant, or in the incarceration of
criminals); Pusey v. City of Youngstown, 11 F.3d 652, 656 (6th Cir. 1993) (state
victim impact law did not provide liberty interest to murder victim's mother to
participate at hearing where charge was reduced and perpetrator pled guilty to
negligent homicide; Ohio law did not specify how victim's statement must affect
hearing or require particular outcome based on what victim has said); Hagen v.
Com., 437 Mass. 374 (2002) (Massachusetts crime victims’ bill of rights, which
afforded crime victims the right to be informed of and participate in criminal
prosecutions, did not confer standing upon victim to seek a stay of execution of
convicted criminal’s sentence; victim of crime does not have a legally cognizable
interest in the prosecution or nonprosecution of another; victim’s due process
18

rights were thus not implicated); Reed v. Becka, 333 S.C. 676, 683 (S.C. Ct. App.
1999) (a victim of crime possesses no rights in the appellate process, nor the
right to veto a plea agreement, even though victims possess “numerous valuable
rights at the trial level”); State v. Adkins, 702 So.2d 1115, 1119 (La. App. 1997),
writ denied, 706 So.2d 998 (La. 1998) (state victims' rights act did not give victims
any right to determine who would be in charge of the investigation and
prosecution or to determine when the defendant was to be brought to trial;
questions of whom to indict and how soon to proceed to trial are at discretion of
prosecution); Johnston v. State, 702 N.E.2d 1085, 1088 (Ind. App. 1998) transfer
granted, opinion vacated, 714 N.E.2d 167 (Ind. 1999) and opinion adopted in part,
vacated in part sub nom. Johnston v. Dobeski, 739 N.E.2d 121 (Ind. 2000)
overruled on other grounds by State v. Hernandez, 910 N.E.2d 213 (Ind. 2009)
(crime victims lack standing to contest a sentencing judge's decision to grant a
downward modification of a defendant's sentence).
Absent any affirmative authority to do so, this Court will not depart from
substantial precedent to create a liberty interest stemming directly from the Due
Process Clause where none has previously existed, nor can this Court conclude
that the Plaintiffs’ due process claims could succeed in the face of a motion to
dismiss. Where victims generally have no cognizable interest in the prosecution
or nonprosecution of another, this Court will not expand existing jurisprudence to
declare a Due Process right of victims of acquittees to comment on the evidence
in continuing mental health hearings, where the same victims would have had no
legally cognizable interest in the state not prosecuting the acquittee in the first
19

instance. See, e.g., Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973) (“a citizen
lacks standing to contest the policies of the prosecuting authority when he
himself is neither prosecuted nor threatened with prosecution” because “a
private citizen lacks a judicially cognizable interest in the prosecution or
nonprosecution of another.”); Kelly v. Dearington, 23 Conn. App. 657, 662 (1990)
(quoting same); Tarabolski v. Williams, 642 N.E.2d 574, 574-75 (Mass. 1994)
(same); Gansz v. People, 888 P.2d 256, 257 (Colo. 1995) (Colorado state
constitution does not confer legal standing upon an alleged crime victim to
appeal an order granting the district attorney's motion to dismiss a criminal
charge or to contest or be heard on a district attorney's motion to dismiss a
criminal action). Nor will this Court create a fundamental Due Process right of
victims of acquittees to be represented by counsel at the mental health hearings
of acquittees absent any argument by the Plaintiffs that such a fundamental right
exists. The Court declines Plaintiffs’ invitation to declare inherent due process
rights for victims of crime where none have previously existed absent any cogent
argument backed by either authority directly on point or authority by which this
Court could draw parallels, particularly where the Connecticut constitutional
provision creating victim rights only gives victims the right to information
concerning release.
In sum, the Plaintiffs assert that “Connecticut law, including the PSRB’s
regulations, violate federal law. To wit, Plaintiffs allege that the PSRB’s
regulations are the violation.” [Dkt. 23-1, Ps’ Opp. to MTD, p. 17]. In effect, the
Plaintiffs are asking this Court to provide them with more rights than they are
20

afforded pursuant to Connecticut’s statutory scheme governing hearings for
those found to be not guilty by reason of mental defect. To do this, the Plaintiffs
would have this Court effectively read into the Due Process Clause of the U.S.
Constitution a victim’s liberty interest in the mental health hearing of a person
adjudged not guilty by reason of mental illness, such that victims could assert a
right to substantively participate in the PSRB’s determination of whether an
acquittee has regained his mental health and is no longer a danger to himself or
to society. The Court finds no legal support for doing so. Accordingly, the
Plaintiffs’ assertion that they have a liberty interest stemming from this
participation in PSRB hearings granted by the Due Process Clause itself cannot
survive a motion pursuant to Rule 12(b)(6). Further, the Plaintiffs have provided
and this Court can conceive of no legal basis on which the Plaintiffs could amend
their claim such that it would survive a 12(b)(6) motion.
ii. Procedure Afforded by the PSRB Process
However, even if the Plaintiffs have articulated a cognizable liberty interest
springing directly from the Due Process Clause in their desired participation in
PSRB hearings such that their claims could survive a Rule 12(b)(6) motion, which
this Court holds that they have not, the Plaintiffs have not been facially deprived
of any rights through the PSRB’s process. Their claim is thus doubly futile.
The Supreme Court has held that “[t]he fundamental requirement of due
process is the opportunity to be heard at a meaningful time and in a meaningful
manner.” Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (citation omitted). Due

21

process further requires that “a person in jeopardy of serious loss (be given)
notice of the case against him and opportunity to meet it.” Id. at 348. In weighing
what procedural safeguards are necessary under the Constitution, a court
considers
[f]irst, 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.
Id. at 335. “Applying this test, the Court usually has held that the Constitution
requires some kind of a hearing before the State deprives a person of liberty or
property.” Zinermon, 494 U.S. at 127 (collecting cases; emphasis in original).
Connecticut allows a criminal defendant to assert as an affirmative defense
that he “lacked substantial capacity, as a result of mental disease or defect, either
to appreciate the wrongfulness of his conduct or to control his conduct within the
requirements of the law.” Conn. Gen. Stat. § 53a-13(a). The Supreme Court has
held that a verdict of not guilty by reason of insanity “establishes two facts: (i)
the defendant committed an act that constitutes a criminal offense, and (ii) he
committed the act because of mental illness.” Foucha v. Louisiana, 504 U.S. 71,
76 (1992). “The purpose of commitment following an insanity acquittal, like that
of civil commitment, is to treat the individual's mental illness and protect him and
society from his potential dangerousness.” Jones v. United States, 463 U.S. 354,

22

368 (1983); see also Clark v. Arizona, 548 U.S. 735, 779 n. 45 (2006) (same). This
purpose differs from the punitive purpose of those convicted of crime:
[a] State, pursuant to its police power, may of course imprison
convicted criminals for the purposes of deterrence and
retribution. But there are constitutional limitations on the
conduct that a State may criminalize. [In the case of
acquittees], the State has no such punitive interest.
Foucha, 504 U.S. at 80. See also Jones v. U.S., 463 U.S. at 369 (noting that a state
may punish a person convicted of a crime even if satisfied that he is unlikely to
reoffend, but that “[d]ifferent considerations underlie commitment of an insanity
acquittee. As he was not convicted, he may not be punished. His confinement
rests on his continuing illness and dangerousness”). Thus, “[t]he committed
acquittee is entitled to release when he has recovered his sanity or is no longer
dangerous.” Jones, 463 U.S. at 368; Foucha, 504 U.S. at 77 (quoting same);
Richard S. v. Carpinello, 589 F.3d 75, 81 (2d Cir. 2009) (“The United States
Supreme Court has long held that the Due Process Clause allows an insanity
acquittee to be confined as long as he is both mentally ill and dangerous, but no
longer.”). Once an aquittee has been cured and regains his sanity, his continued
detention is unconstitutional. Lynch v. Overhoser, 369 U.S. 705 (1962).
The Connecticut Supreme Court, too, has held that “the confinement of
insanity acquittees, although resulting initially from an adjudication in the
criminal justice system, is not punishment for a crime.” Payne v. Fairfield Hills
Hosp., 215 Conn. 675, 683-84 (1990). Rather, “[t]he purpose of [an acquittee’s]
commitment ‘is to treat the individual's mental illness and protect him and society
from his potential dangerousness.” State v. March, 265 Conn. 697, 715-16 (2003);
23

see also Payne, 215 Conn. at 683-84 (same). Thus, “as a matter of due process,
an acquittee is entitled to release when he has recovered his sanity or is no
longer dangerous.” State v. March, 265 Conn. at 714. However, “as long as an
acquittee has a mental illness that requires confinement for purposes of
treatment and protection [even if this illness is different from that forming the
basis of his confinement], his confinement to a psychiatric facility is reasonably
related to the purpose of commitment and is, therefore, constitutional.” Id. at
715-16 (citations omitted).
The hearing process before the PSRB must take into account these
considerations, and the Court must consider these overarching dictates when
analyzing whether Connecticut’s statutory and regulatory strictures comport with
the Due Process Clause as relating to victims of acquittees, who are not parties
to hearings before the PSRB. Connecticut statute dictates that
[a]t any hearing before the board considering the discharge,
conditional release or confinement of the acquittee … the
board shall make a finding as to the mental condition of the
acquittee and, considering that its primary concern is the
protection of society, shall do one of the following: (1) If the
board finds that the acquittee is a person who should be
discharged, it shall recommend such discharge to the court …
(2) If the board finds that the acquittee is a person who should
be conditionally released, the board shall order the acquittee
conditionally released subject to such conditions as are
necessary to prevent the acquittee from constituting a danger
to himself or others. (3) If the board finds that the acquittee is
a person who should be confined, the board shall order the
person confined in a hospital for psychiatric disabilities …
Conn. Gen. Stat. § 17a-584.

24

The statute and regulations governing the PSRB define an acquittee who
should be conditionally released as one who is mentally ill “to the extent that his
final discharge would constitute a danger to himself or others but who can be
adequately controlled with available supervision and treatment on conditional
release.” Conn. Gen. Stat. § 17a-580(9); Regs. Conn. State Agencies § 17a-5812(a)(9). A “person who should be confined” is “an acquittee who is mentally ill …
to the extent that his discharge or release from the hospital on conditional
release would constitute a danger to himself or others, and who cannot be
controlled adequately with available supervision and treatment on conditional
release.” Regs. Conn. State Agencies § 17a-581-2(a)(10). “Danger to self or
others” means “the risk of imminent physical injury to others or self, and also
includes the risk of loss or destruction of the property of others,” and mental
illness refers to any mental illness or disease as defined by the current
Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric
Association, including any mental illness “in a state of remission which may
become active with reasonable medical probability.” Id. at § 17a-581-2(a)(5), (6);
see also Conn. Gen. Stat. § 17a-580(5). A person who should be discharged from
the PSRB’s authority, on the other hand, is “an acquittee who is not mentally ill …
to the extent that his discharge would constitute a danger to himself or others.”
Regs. Conn. State Agencies § 17a-581-2(a)(11).
PSRB hearings are open to the public and the acquittee bears the “burden
of proving by a preponderance of the evidence the existence of conditions
warranting a less restrictive order” than the order then-currently in place. Conn.
25

Gen. Stat. § 17a-596(d), (f). The PSRB must consider all evidence available to it
that is “material, relevant and reliable regarding the issues before the board” and
includes, but is not limited to, the trial record, “the information supplied by the
state’s attorney or any other interested party, including the acquittee, and
information concerning the acquittee’s mental condition and the entire
psychiatric and criminal history of the acquittee.” Conn. Gen. Stat. § 17a-596(b).
At hearings the Board must, “as a matter of policy, provide for the exclusion of
irrelevant, immaterial or unduly repetitious evidence.” Conn. Gen. Stat. § 4-178
(as cited by Regs. Conn. State Agencies § 17a-581-24).
An acquittee granted conditional release by the Board is subject to
continuing PSRB monitoring; the PSRB may designate a person or agency to
supervise the acquittee (Conn. Gen. Stat. § 17a-589), may require the acquittee to
“report to any public or private mental health facility for examination,” which
facility “shall furnish reports to the board on a regular basis concerning the
status of the acquittee and the degree to which the acquittee is a danger to
himself or others” (Conn. Gen. Stat. § 17a-590), and is subject to modification of
conditional release (Conn. Gen. Stat. § 17a-591). Further, an acquittee is subject
to a “conditional release plan” addressing the concerns of housing, mental
health, supervision, and any special conditions to be imposed. The PSRB must
review the plan and “shall determine whether the[se] concerns [ ] are addressed
in a manner adequate and necessary to insure public safety.” Regs. Conn. State
Agencies § 17a-581-22.

26

If an acquittee violates the terms of conditional release, his mental health
has changed, or his continued release “would constitute a danger to himself or
others,” the PSRB may revoke conditional release and order the acquittee to be
returned to psychiatric confinement. Conn. Gen. Stat. § 17a-594. To be
discharged from the custody of the PSRB, an acquittee or the PSRB must apply
to the Connecticut superior court, which is obligated to “make a finding as to the
mental condition of the acquittee and, considering that its primary concern is the
protection of society,” determine whether the acquittee should be discharged
from custody. Conn. Gen. Stat. § 17a-593.
Connecticut statutes and the regulations governing the PSRB also provide
various rights to victims of crime perpetrated by a committed acquittee. A
“victim” is defined as “a person who is a victim of a crime, the legal
representative of such person or a member of a deceased victim’s immediate
family.” Conn. Gen. Stat. § 17a-601(a). The PSRB is obligated to “make a
reasonable effort to notify the victim of any board hearings or orders or of any
escape of the acquittee.” Conn. Gen. Stat. § 17a-601(b). This notice must be
written and given “within a reasonable time.” Regs. Conn. State Agencies § 17a581-15. A victim “may appear at any court or board hearing concerning the
acquittee to make a statement.” Conn. Gen. Stat. § 17a-601(b). The regulations
governing the PSRB clarify that a victim “shall have the right to be present at any
hearing, and to make a statement at the hearing, expressing his/her opinion(s) on
the matter before the Board. The victim may submit such a statement in writing
prior to the hearing to be entered into the record if the victim is not present at the
27

hearing.” Regs. Conn. State Agencies § 17a-581-42. Within twenty-five days of
the conclusion of any PSRB hearing, the PSRB must provide written notice of its
decision to the acquittee, the acquittee’s counsel, the state’s attorney, and any
victim. Conn. Gen. Stat. § 17a-596(h).
It is in this context that this Court must analyze the process due to the
victims in this case. First, as noted by both the U.S. and Connecticut Supreme
Courts, acquittees are not subject to criminal liability specifically because of the
existence of a mental illness. The PSRB, while exercising custodial control over
acquittees, does so not for punitive reasons, but for the purpose of treatment
until acquittees reach a point where they have recovered their sanity or are no
longer dangerous. Second, although they necessarily possess personal interests
in the outcome of a PSRB hearing, it is important to note that an acquittee’s
victims are not parties to these hearings (just as victims are not parties to a
criminal prosecution). Although they are not parties, the State statutory scheme
clearly affords victims the right to reasonable notice of any PSRB hearing
involving the acquittee in whom they have an interest, and the Plaintiffs here do
not allege that they have been deprived of such notice.
While the Connecticut Constitution does not afford crime victims the right
to be heard on the release of a defendant, Connecticut regulations afford victims
of an acquittee that right. Victims of acquittees are also afforded “the right to be
present at any hearing, and to make a statement at the hearing expressing his/her
opinion(s) on the matter before the Board.” Moreover, “The victim may submit
such a statement in writing prior to the hearing to be entered into the record if the
28

victim is not present at the hearing.” Regs. Conn. State Agencies § 17a-581-42.
The Plaintiffs allege that this regulation is facially deficient to protect their due
process rights without explaining how this regulation is deficient or to what
additional process they are due. [Dkt. 22, Decl. Jgmnt. Motion, ECF p.16].
Plaintiffs apparently believe that they must be afforded, pursuant to this
regulation, the right to make both an oral and written statement, or the right to
submit a written statement and also have their legal representative speak on their
behalf at PSRB hearings; the Plaintiffs essentially challenge the PSRB’s
interpretation of this Rule as an either/or statement.
The Plaintiffs, however, have failed to articulate why they believe that they
are entitled to both a written and oral statement pursuant to the Due Process
Clause or this Rule, or how the absence of both options has compromised their
rights. The Rule is clearly constructed in the alternative; a victim (defined as “a
person who is a victim of a crime, the legal representative of such person or a
member of a deceased victim’s immediate family”) is entitled to make a statement
at a hearing, and “may submit such a statement in writing prior to the hearing to
be entered into the record if the victim is not present at the hearing.” Thus, a
written statement declares a victim’s intent not to attend (or have someone attend
in his stead) or speak at a hearing; nothing in this Rule requires the PSRB to
allow a victim to both submit a written statement and to present a statement at a
hearing. Plaintiffs’ apparent claim that the PSRB’s application of this Rule is
faulty is erroneous; it appears that the PSRB interprets this Rule in exactly the
same way as the Rule is written and in which this Court interprets it: in the
29

alternative. Absent any clear reason to do so, this Court will not vest in the
Plaintiffs a new right to present both oral and written statements to the PSRB,
and does not conclude that this Rule is facially deficient in protecting a victim’s
interest in making a statement to the PSRB solely because it gives victims an
option as to the method of transmission of their statement. Moreover, as will be
articulated in section IV.b, the statutes and regulations applicable to victims of
crime not perpetrated by acquittees are constructed nearly identically, conferring
on them the same alternate right to present a written or oral statement, even
though the Plaintiffs assert that their own rights to allocution are abridged in
ways in which the rights of such crime victims are not. This claim cannot
withstand a motion to dismiss pursuant to Rule 12(b)(6) and amendment would
be futile.
Connecticut’s process also allows a victim to be represented by counsel,
as the definition of “victim” specifically encompasses the “victim of a crime” or
“the legal representative of such person.” The Plaintiffs have not offered an
explanation for their claim that Connecticut’s statutes and regulations are facially
unconstitutional in this regard. Where the statute specifically contemplates that a
“legal representative” may act in place of the victim of a crime, this Court cannot
conclude that this process facially deprives the Plaintiffs of access to counsel,
especially where, as here, various Plaintiffs chose not to attend PSRB hearings,
chose to speak for themselves in writing prior to the hearings, and did not
reserve any right to have counsel supplement their written statements.

30

While consideration of potential harm that an acquittee may cause to the
public in general and to the victim in particular is part and parcel of the process
of determining whether an acquittee is sane and his detention thus no longer
constitutional, continued detention of a sane acquittee based the potential
emotional harm to a victim from the mere knowledge that the acquittee is no
longer detained is anathematic to the purpose of an acquittee’s commitment,
namely to treat the individual's mental illness and protect him and society from
his potential dangerousness stemming from that illness. Assessing
dangerousness in this manner would open the floodgates to continuing the
commitment of any number of acquittees who have regained their sanity and
pose no actual danger to the community until their victims are no longer subject
to anxiety at the thought of the acquittees’ freedom. This, of course, is
insupportable in the face of the Supreme Court’s repeated proclamation that an
acquittee is entitled to be released when he “has recovered his sanity or is no
longer dangerous.” Jones v. United States, 463 U.S. 354, 368 (1983). Nowhere in
this entitlement is the proscription that an acquittee’s victims must also be free
from anxiety as a precondition to an acquittee’s release. No facial Procedural
Due Process violation arises where the statutory scheme is absent as to
consideration of future mental harm to an acquittee’s victims, as future mental
harm to victims is in no way related to whether an acquittee remains either
dangerous or afflicted by mental illness. See also Sastrom v. Psychiatric Sec.
Review Bd., 291 Conn. 307, 331 (2009) (“decisions with respect to the danger the
acquittee poses to others and the appropriateness and type of treatment are best

31

left to the professional discretion of the board”). Consequently, the Plaintiffs’
claim cannot withstand a motion pursuant to Rule 12(b)(6) and no amendment
can cure this claim.
Moreover, there is no reason to find that Connecticut’s statutory process is
deficient where it allegedly does not allow the PSRB to consider non-imminent
danger to the victims or society, as Plaintiffs allege. First, David Messenger has
only been subject to conditional release hearings. He has not – nor have the
Plaintiffs alleged – that he has been the subject of a PSRB or court hearing that
would discharge him from the PSRB’s custody altogether. The Plaintiffs argue
that the PSRB is limited to considering “imminent physical injury to self or
others” in assessing an acquittee’s danger. However, the Plaintiffs have
disregarded the various procedural safeguards in place when conditional release
is granted, as detailed previously. An acquittee may only be conditionally
released if he is “an acquittee who is mentally ill … to the extent that his final
discharge would constitute a danger to himself or others but who can be
adequately controlled with available supervision and treatment on conditional
release.” Regs. Conn. State Agencies § 17a-581-2(a)(9).
Acquittees granted conditional release, then, are those who necessarily
still pose a danger to themselves or others when not under mental health
supervision, but who are controllable through the various safeguards the PSRB
has put in place, and who continue to suffer from a mental illness. Conditional
release is unavailable to acquittees who pose a danger but who “cannot be
controlled adequately with available supervision and treatment on conditional
32

release.” § 17a-581-2(a)(10). Thus, the focus of the PSRB’s inquiry into
conditional release is not whether an acquittee will pose a risk to himself or
others sometime in the undefined future, but whether the PSRB can control the
risk of danger an acquittee poses with the resources it has available. If it cannot,
conditional release is improper.
Contrary to the Plaintiffs’ apparent argument, the PSRB has no authority to
confine acquittees indefinitely if they no longer suffer from a mental illness,
regardless of the mental or emotional state of the acquittee’s victims. In Foucha
v. Louisiana, the Supreme Court held that an acquittee who no longer suffered
from a mental illness could not be confined where the state could not prove “by
clear and convincing evidence that [the acquittee was] demonstrably dangerous
to the community,” as it was not enough to defeat the acquittee’s liberty interest
under the Constitution in being freed from indefinite confinement in a mental
facility and where, should the acquittee commit criminal acts in the future, the
state’s interest would be “vindicated by the ordinary criminal processes involving
charge and conviction, the use of enhanced sentences for recidivists, and other
permissible ways of dealing with patterns of criminal conduct.” 504 U.S. 71, 81
(1992). Indeed, the Connecticut Supreme Court has classified an acquittee’s right
to be released from confinement in the alternative: “as a matter of due process,
an acquittee is entitled to release when he has recovered his sanity or is no
longer dangerous.” State v. March, 265 Conn. 697, 714 (2003) (emphasis added).
Where the Supreme Court of this nation has espoused such principles, this Court
will not declare the “imminent” danger requirement in Connecticut’s scheme –
33

which parallels the Supreme Court’s own classification of danger – to be a
violation of due process. Plaintiffs’ claim thus cannot survive a motion pursuant
to Rule 12(b)(6) and cannot be cured by further factual allegations.
Moreover, and quite simply, the Plaintiffs do not allege that they have been
deprived of the right to present information as to their own ongoing emotional or
mental distress in the victim statements that they are specifically afforded the
right to make. Instead, the Plaintiffs only contend that the PSRB may not
consider this information in determining Messenger’s dangerousness. The Court
is not persuaded that the PSRB cannot consider reliable evidence of emotional
distress which a victim may suffer based on the dangerousness of an acquittee
which is material and relevant, as developed below. The Plaintiffs may therefore
certainly furnish such information to the PSRB in their victim statements.
Nor is Connecticut’s statutory and regulatory regime constitutionally
deficient where it does not afford victims the explicit right to comment on
evidence presented at a PSRB hearing. As will be discussed infra, the Plaintiffs’
complaint stems from the PSRB’s interruption of Plaintiffs’ Attorney Klar as he
was attempting to comment on evidence by a doctor as to Messenger’s thencurrent diagnosis and mental illness status. The Board’s refusal to permit a lay
person from commenting on expert testimony on which the lay person has no
experiential or professional basis to comment simply does not constitute a facial
denial of due process or of a victim’s right to “make a statement at the hearing,
expressing his/her [lay] opinion(s) on the matter before the Board.”

34

As previously discussed, the PSRB must consider all evidence available to
it that is “material, relevant and reliable regarding the issues before the board.”
The overarching issue before the PSRB in David Messenger’s PSRB hearings has
been the status of Messenger’s mental illness and whether Messenger should be
granted temporary leave or conditional discharge given his then-current
diagnosis, the danger to himself or others, and the ability of the PSRB to control
any dangerousness if granted leave or conditional release. A victim (which
includes a legal representative) who possesses no qualifications to speak to an
acquittee’s diagnosis or mental health status and no factual basis for doing so
likewise possesses no ability to offer reliable testimony in relation to evidence
offered by an expert as to the acquittee’s diagnosis. As the Board must, “as a
matter of policy, provide for the exclusion of irrelevant, immaterial or unduly
repetitious evidence” and that which is unreliable, a lay victim’s statement
commenting on expert evidence is simply not probative.
Moreover, there is no indication in the statutes or regulations that a victim
would be prevented from including in a written or oral statement to the Board
factual content tending to demonstrate that an acquittee posed a danger to
himself or others, or that an acquittee had engaged in acts tending to
demonstrate mental illness. For instance, the statutes and regulations do not
facially prevent a victim from giving a statement to the PSRB detailing that an
acquittee has improperly attempted to contact a victim, that an acquittee has
made threats to a victim or others since his commitment (demonstrating potential
dangerousness), that an acquittee has admitted to the victim that he continues to
35

suffer from delusions (demonstrating illness), or that a victim has witnessed an
acquittee in the throes of what the victim believes to be psychosis since his
commitment (also demonstrating illness). Such information would be relevant to
the central issues before the PSRB if such statements had a factual basis.
However, the scheme rightly excludes immaterial evidence, and a lay victim’s or
his lay attorney’s comments solely indicating displeasure or taking issue with a
doctor’s diagnosis of the acquittee (or any opinion presented by an expert)
without any then-current factual basis for such conclusion does not address an
issue before the PSRB and is neither material nor relevant. Exclusion of such
statements does not constitute a denial of due process.
The Court also notes that the PSRB consists of six members: a
psychiatrist, a psychologist, a person with substantial experience in the process
of probation, an attorney barred in Connecticut, a member of the public with
substantial experience in victim advocacy, and a member of the general public.
Conn. Gen. Stat. § 17a-581. As the Connecticut Supreme Court has noted,
“decisions with respect to the danger the acquittee poses to others and the
appropriateness and type of treatment are best left to the professional discretion
of the board.” Sastrom v. Psychiatric Sec. Review Bd., 291 Conn. 307, 331 (2009)
(holding that “while the board's consideration of an acquittee's placement must
focus first on the interests of society, the board also must facilitate the care and
treatment needs of the acquittee. Confinement under conditions of maximum
security [as determined by the PSRB] reasonably could further both purposes.”).
It follows that decisions as to what constitutes material or immaterial evidence,
36

too, are best left to the PSRB, which includes members with expertise in five
different areas.
Lastly, the Court notes that victims of crimes committed by acquittees
possess no inherent statutory right to comment on the evidence presented at a
PSRB hearing. Rather, victims possess a right to “make a statement at the
hearing, expressing his/her opinion(s) on the matter before the Board.” This
statutory construction is effectively identical to other Connecticut statutes that
allow victims of non-acquittees, who are not parties to the hearings they attend,
to present a statement to the court or to an adjudicatory board. See section IV.b.
As a general matter with regard to each of Plaintiffs’ claims for denial of
due process, the Court notes that in addition to the process already afforded to
victims before and during PSRB hearings, the Regulations also provide a
procedure by which persons may petition the PSRB for declaratory rulings on
(A) The validity of any regulation of the Board, and (B) The
applicability to specified circumstances of a provision of the
general statutes, a regulation, or a final decision, as defined in
Connecticut General Statutes, Section 4-166 (3), on a matter
within the jurisdiction of the Board.
Conn. Agencies Regs. § 17a-581-58(a)(1). Petitions may be filed by an individual
or by an attorney representing an individual. Id. at § 17a-581-58(b)(1). Within
sixty days of the filing of a petition with the PSRB, the Board must do one of the
following in writing:
(A) Issue a declaratory ruling in accordance with the request in
the petition containing the names of all parties to the
proceeding, the particular facts upon which it is based, and
the reasons for the conclusions contained therein;
37

(B) Order that the matter be the subject of a hearing as a
contested case;
(C) Notify the parties that a declaratory ruling shall be issued
by a date certain;
(D) Decide not to issue a declaratory ruling and initiate
regulation-making proceedings; or
(E) Decide not to issue a declaratory ruling, stating the
reasons for its action.
Id. at § 17a-581-58(e)(1). Declaratory rulings are final decisions and may be
appealed to the Connecticut Superior Court pursuant to Conn. Gen. Stat. § 4-183.
Id. at § 17a-581-58(e)(5). Although available to the Plaintiffs, there is no indication
in the record that the Plaintiffs availed themselves of this administrative and
judicial process to raise the challenges which now form the basis of this action.
In sum, the process encompassed in Connecticut’s statutes and
regulations is more than adequate to represent a non-party victim’s procedural
due process rights to notice of, make material, reliable and relevant statements
regarding, and an opportunity to be present at hearings assessing the
dangerousness and mental health of an acquittee. Victims are afforded specific
rights to notice of any hearings and the right to attend hearings, the ability to
either make a statement in person or to supply the PSRB with a written statement
to be included in the record, and the right to representation by counsel in the
process if a victim so chooses. These procedures fulfill the hallmarks of notice
and an opportunity to be heard pursuant to Procedural Due Process, and are not
facially unconstitutional.

38

Consequently, the Plaintiffs’ claim that the State’s statutes and regulations
are facially violative of due process cannot survive a motion pursuant to Rule
12(b)(6) and further amendment will not cure this claim. Amendment to name the
correct defendant would thus be futile, as would amendment of the Plaintiffs’ due
process claim, as the Plaintiffs cannot address these deficiencies or allege facts
sufficient to support this claim. Amendment is DENIED as futile.
iii. Alleged Deprivations of Due Process Specific to the Plaintiffs
Lastly, even if the Plaintiffs’ foregoing arguments could survive a motion
pursuant to 12(b)(6), which the Court concludes they cannot, any amendment
would still be futile as the Plaintiffs here have not demonstrated that they have
been deprived of due process pursuant to Connecticut’s scheme in the context of
the particular circumstances of this case. Rather, the record demonstrates that
the PSRB complied with Connecticut’s statutes and regulations and that the
Plaintiffs were not deprived of due process during the three hearings in which
they believe their constitutional rights were violated.
1. Observations about Evidentiary Record
First, the Plaintiffs allege that at a hearing4 on May 1, 2009 they appeared
through counsel, John Klar, who attempted but was not allowed to make certain

4

The Court notes that the transcript of this hearing designates it as a Mandatory
Review pursuant to Conn. Gen. Stat. § 17a-585 and a Temporary Leave hearing
pursuant to Conn. Gen. Stat. § 17a-587. [Dkt. 5-6, Exh. G, 5/1/09 Trans. p.1].
Conn. Gen. Stat. § 17a-585 dictates that “[t]he board shall conduct a hearing and
review the status of the acquittee not less than once every two years. At such
hearing the board shall make a finding and act pursuant to section 17a-584.” A
temporary leave permits an acquittee “to leave such hospital or the custody of
39

observations about the evidentiary record, but rather “was interrupted and
advised that it was not permissible for victims’ counsel to comment on the
evidence.” [Dkt. 21, Am. Compl. ¶13; see also dkt. 4-4, Ps’ PI Motion, ECF p.3/15;
dkt. 22, Decl. Jgmnt. Motion ECF p.7 ¶9]. In their motion for declaratory judgment
the Plaintiffs cite to a partial transcript of the May 1, 2009 PSRB hearing as
illustration, which they included as an exhibit to their motions and which they
also reference in their opposition to the Defendant’s motion to dismiss. [Dkt. 5-6,
Exh. G, 5/1/09 Trans.; dkt. 22, Decl. Jgmnt. Motion ECF pp.7, 18; dkt. 23-1, Ps’
Opp. to MTD, ECF p.35; dkt. 4-4, Ps’ Motion for PI, ECF p.3]. This transcript,
which is also incorporated by reference into the complaint, records the following
exchange:
Mr. Klar: …Dr. Trueblood has pointed out that he didn’t – he
has not disclosed as much as expected to, and also has
opined that [Messenger] is free of psychotic symptoms. Well
how can we rely on the testimony of the psychotic person that
he’s not hearing voices. That if he isn’t forthcoming about a
lease, how is he to be forthcoming about voices when he has a
motivation to be free, to – to –
Chairman Berger: Counselor –
Klar: Yes, sir?
Berger: - if you could stick to what the impact on the victim is Klar: Yes, sir – well –
Berger: -- we would appreciate it.

said commissioner temporarily, under the charge of his guardian, relatives or
friends, or by himself, at such times and under such conditions as … deem[ed]
appropriate” and shall be granted, “subject to such conditions and supervision
as the board may set in the order for temporary leave, if it concludes that the
acquittee’s temporary leave, under the conditions specified, would not constitute
a danger to himself or others.” Conn. Gen. Stat. § 17a-587(a).
40

Klar: Yes, thank you. I’m sorry, I thought I was allowed to
make comments on the evidence.
Berger: No, you’re not allowed to make comments on –
Klar: I – I’m sorry, I thought – I apologize, I – I didn’t mean to
be inappropriate.
[Dkt. 5-6, Exh. G, 5/1/09 Trans., 101:1-21].
This exchange reveals that Attorney Klar attempted to offer unreliable
evidence. He explicitly commented on the credibility of the expert opinion of a
witness as to Mr. Messenger’s diagnosis and his then-current psychotic
condition, or lack thereof. The Plaintiffs do not, however, assert that Attorney
Klar is in any way qualified to rebut or comment on expert testimony regarding a
mental illness diagnosis, treatment for such illness, or the current psychotic or
non-psychotic state of an acquittee with whom he had no contact and no ability
to treat. Nor do the Plaintiffs explain how they themselves would have been
qualified to comment on such evidence had they been present at the hearing to
offer their own statements. Moreover, the plaintiff victims of Messenger’s crime
are not parties to any PSRB hearing involving Messenger and are not entitled to
present or cross examine witnesses. Nonetheless, the transcript clearly
demonstrates that Attorney Klar was attempting to call into question Dr.
Trueblood’s assessment that Messenger was free of psychotic symptoms,
something Attorney Klar was not qualified to do. It was thus reasonable for the
PSRB to prevent Attorney Klar – a lay person – from commenting on expert
testimony presented by a medical professional as to Messenger’s diagnosis.

41

Further, the PSRB must consider all evidence available to it that is
“material, relevant and reliable regarding the issues before the board” including,
but not limited to, the trial record, “the information supplied by the state’s
attorney or any other interested party, including the acquittee, and information
concerning the acquittee’s mental condition and the entire psychiatric and
criminal history of the acquittee.” Conn. Gen. Stat. § 17a-596(b). Attorney Klar’s
lay opinion as to the accuracy of Dr. Trueblood’s diagnosis of Messenger’s thencurrent mental state is not relevant to the issue before the Board of whether
Messenger continued to suffer from a mental illness, as Attorney Klar is not
qualified to opine on such a diagnosis. It is also unreliable as Attorney Klar does
not purport to have any expertise in the treatment or diagnosis of mental illness.
The Board must, “as a matter of policy, provide for the exclusion of irrelevant,
immaterial or unduly repetitious evidence.” Conn. Gen. Stat. § 4-178; Regs.
Conn. State Agencies § 17a-581-24. Klar’s commentary on Trueblood’s evidence
at the May 1, 2009 hearing was also likely unduly repetitious, as Trueblood had
already testified.
Lastly, the PSRB’s rules give victims a chance to present a statement to
the Board in writing before a hearing, or in person at a hearing. It stands to
reason, then, that the PSRB would reasonably have believed that the statement to
be presented at the May 1, 2009 hearing would have been similar to any statement
presented in writing prior to such hearing, which necessarily would not have
taken into account expert evidence presented at the hearing. As articulated infra,
victims of convicted offenders have an identical right to make a statement either
42

before a hearing of the Board of Pardons and Parole, in writing, or during a
hearing, in person. See section IV.b.  
As such, the PSRB did not violate due process by prohibiting Klar from
commenting on this evidence. Amendment of this claim is futile as additional
factual allegations could not remedy the claim’s deficiencies.
2. Denial of Counsel, November 18, 2011
The Plaintiffs next allege that the PSRB denied them counsel at a hearing
held on November 18, 2011. The complaint alleges that, on that date, “Plaintiffs’
counsel was required by PSRB Executive Director Ellen LaChance, only moments
before the hearing commenced, to demonstrate that he had the authority to
represent Plaintiff Dane Messenger and other Plaintiffs herein, in an intrusion into
the attorney-client relationship between the Plaintiff(s) and Attorney John Klar,”
thus violating the Plaintiffs’ right to due process. [Dkt. 21, Am. Compl. ¶14]. This
allegation cannot withstand a motion pursuant to Rule 12(b)(6).
Rule 1.5 of Connecticut’s Rules of Professional Conduct requires that
“[t]he scope of [an attorney’s] representation, the basis or rate of the fee and
expenses for which the client will be responsible, shall be communicated to the
client, in writing, before or within a reasonable time after commencing the
representation.” Conn. Rules Prof’l Conduct R. 1.5(b). Such a writing constitutes
a contract by which the attorney and the represented party are bound. See
Ullman, Perlmutter & Sklaver v. Byers, 96 Conn. App. 501, 505 (2006). It is
reasonable to believe, because Director LaChance asked Klar to demonstrate his
43

authorization to represent one of the Plaintiffs prior to speaking on their behalf at
the hearing, that the PSRB was aware of this professional practice rule. Thus, on
its face, the PSRB’s request that Klar demonstrate his compliance with
Connecticut’s ethical rules and his authorization to represent a victim for whom
he intended to speak at a hearing before the PSRB does not violate due process.
See, e.g., Burton v. Mottolese, 267 Conn. 1, 38 (2003) (upholding trial court’s
sanction against attorney who was not authorized to bring action seeking
declaratory and injunctive relief as to certain plaintiffs because she had violated
rule 1.5(b) requiring a written engagement letter); Sullivan v. Town of Monroe,
CV000370545, 2001 WL 951363 (Conn. Super. Ct. July 17, 2001) (noting that
“[b]ecause there had never been an attorney-client relationship between the
plaintiffs and Attorney Burton the court [in which Burton was representing
plaintiffs at trial] inquired concerning her compliance with § 1.5(b) of the Rules”).
Further, amendment of this claim would be futile as demonstrated by the
Plaintiffs’ arguments in their motions for preliminary injunction and declaratory
judgment, as well as in their opposition to the Defendant’s motion to dismiss. In
these motions, the Plaintiffs specifically cite to the affidavit of Hannah
Williamson, who affirms that she was present at the PSRB hearing on November
18, 2011, along with Attorney Klar. [Dkt. 5-8, Exh. I., H.W. Aff. ¶ 3]. She affirms
that LaChance approached her and Klar and asked Klar if he intended to address
the PSRB, to which Klar responded “I represent the whole family.” [Id. at ¶ 4].
After LaChance told Klar that he could only speak on behalf of a victim who had
not provided the PSRB with a written statement, Klar stated “I represent the child
44

[Dane Williamson].” [Id.]. LaChance responded that the child was no longer a
child, and asked Klar if he had spoken to Dane Williamson recently. Klar
responded “[n]ot recently” and excused himself to confer with his clients. [Id.].
Williamson’s explanation of the November 18, 2011 incident only bolsters
this Court’s conclusion that amendment of this claim would be futile. Dane
Williamson, by the Plaintiffs’ own admission, was five years old at the time of his
mother’s death on January 2, 1998. At the May 1, 2009 hearing, the first hearing
about which the Plaintiffs complain, Dane Williamson thus would have been
sixteen or seventeen years old, a legal minor. At the November 18, 2011 hearing,
Dane had attained the age of majority and was a legal adult. Williamson’s
affidavit demonstrates that Ellen LaChance, the PSRB’s Director, appeared to be
concerned that Dane Williamson had grown from a legal minor whose parents or
legal guardians could choose both his legal representative and the information
about him to be submitted at a public hearing, to an adult on whose behalf his
parents or legal guardians could no longer contract, and who as an adult could
well have chosen not to present personal information to the PSRB in a public
hearing.5 Klar admitted to LaChance that he had not spoken to Dane recently,
and thus has tacitly admitted that he had not obtained Dane Williamson’s explicit
consent to continue representation of him after Dane had become an adult

5

The Court notes that, based on the filings in this case, the Plaintiffs had in the
past presented to the PSRB information as to Dane Williamson’s mental and
emotional state. [See, e.g., dkt. 5-2, 3/30/06 letter from Melody Williamson
discussing her minor child’s mental health]. It is not inconceivable that a grown
man would choose not to elaborate on such information at a public hearing, even
where his guardians might have chosen to present the same such information
when that adult was a child.
45

responsible for making his own contracts and consenting to his own
representation.6
Even if this incident constituted a deprivation of Dane Williamson’s due
process rights, which the Court holds it did not, the Plaintiffs admit that they had
notice of the issue of Dane’s representation and an opportunity to remedy the
problem, but that they chose not to do so. Hannah Williamson affirms that after
the exchange with LaChance, just before 9:00 AM, she and Klar called Dan
Williamson (her brother and the man who raised Dane Williamson), and
discussed “getting Dane Williamson out of bed, but [] were concerned that the
nature of the discussion and shortness of notice might cause him undue stress.”
[Dkt. 5-8, Exh. I., H.W. Aff. ¶ 5]. They thus decided not to wake Dane Williamson,
who was then a legal adult, to discuss Klar’s representation of him before the
PSRB. [Id.].
Based on these allegations, the Court must conclude that it was not a
violation of due process or the Plaintiffs’ right to counsel for the PSRB to inquire
about the continuation of Dane Williamson’s representation, and this Court
cannot conceive of an amendment to this claim that would cure the deficiencies

6

This admission also tends to negate the idea that Dane Williamson the legal
adult had ratified by his continuing conduct the contract for representation
entered into by his legal guardians on his behalf at the time he was a minor. See,
e.g., U.S. v. Wong, 40 F.3d 1347, 1366 (2d Cir. 1994) (“… a minor legally incapable
of entering a contract may nonetheless be found to have ‘ratified’ a contract by
taking actions after attaining majority consistent with an intent to be bound by
it”).

46

therein. Amendment would thus be futile as the Plaintiffs cannot address these
deficiencies or allege facts sufficient to support this claim.
3. Presentation of Dual Victim Statements and Denial of
Counsel, November 18, 2011 and May 3, 2013
Lastly, the Plaintiffs assert that their due process rights were violated at
the November 18, 2011 hearing and at a May 3, 2013 hearing when the plaintiffs
were not allowed to present both written and oral statements. Specifically, at the
November 18, 2011 hearing, the Plaintiffs allege that “the PSRB [ ] indicated that
counsel could not represent or speak at the hearing on behalf of a victim who had
already submitted a written statement.” [Dkt. 21, Am. Compl. ¶14; dkt. 22, Decl.
Jgmnt. Motion ECF p.16; dkt. 4-4, Ps’ Motion for PI, ECF p.4, ¶ 8]. At the May 3,
2013 PSRB hearing, “the Plaintiff Dane Williamson was permitted by the PSRB
solely to speak in person, or by written statement, and was denied the ability to
address the Defendant PSRB through legal counsel of his choosing.” [Dkt. 21,
Am. Compl. ¶15; dkt. 22, Decl. Jgmnt. Motion ECF p.8 ¶ 16]. Nothing in the record
suggests that these written statements requested that Attorney Klar supplement
their writers’ statements in person at the hearings.
The PSRB’s rules and regulations, as articulated earlier in this decision,
clearly state that a victim or his legal counsel may attend a hearing and make a
statement in person or, if he will not attend the hearing, may submit a written
statement to the PSRB as part of the record to be considered. Nowhere do the
regulations allow a victim or his advocate to make both a written and an oral

47

statement or presentation to the PSRB. To allow both would appear to serve no
purpose other than to undermine the principles of efficiency and finality. Further,
this Court has concluded that this regulation does not violate due process. The
PSRB’s enforcement of this rule, then, does not constitute a violation of due
process. Although the Plaintiffs have couched this claim partially as one for
denial of counsel, the PSRB’s enforcement of this regulation does not constitute
a denial of a victim’s right to counsel where a victim has submitted a written
statement before and does not appear at the hearing. In that instance counsel’s
statement is cumulative and might reasonably appear not to have been
authorized by the absent victim. Where a victim chooses to submit a written
statement prior to a hearing, neither he nor his counsel has the right to also make
an oral statement before the Board. It also appears that the PSRB consistently
applied its rules at both the November 18, 2011 and May 3, 2013 hearings. On its
face, the November 18, 2011 incident of which the Plaintiffs complain does not
constitute a violation of due process.
The evidence to which Plaintiffs cite in support of their claim as to the
November 18, 2011 hearing does not change this Court’s analysis and only
confirms that the Plaintiffs received adequate process at this hearing (if indeed
any was due). As to this hearing, the Plaintiffs reference the affidavit of Hannah
Williamson, which appears as Exhibit I to their motions for preliminary injunction
and declaratory judgment. [Dkt. 22, Decl. Jgmnt. Motion ECF p.16; dkt. 4-4, Ps’
Motion for PI, ECF p.4, ¶ 8]. Williamson affirms in that document that PSRB chair
LaChance told her and Klar that Klar could only represent at the hearing a victim
48

who had not provided a written or other statement to the Board, and that Heather
Messenger Williamson’s brothers had already provided the Board with written
statements. [Dkt. 5-8, Exh. I, H.W. Aff. ¶ 4]. Thus, the evidence in support of
Plaintiffs’ November 18, 2011 claim demonstrates that the PSRB complied with its
rules and regulations allowing a victim or his advocate to either present an oral
statement at the hearing or, it not present, to present a written statement to the
Board for consideration. This does not constitute a denial of due process.
As to the May 3, 2013 hearing, the Plaintiffs rely on and cite to a portion of
the hearing transcript7 to support their argument that process was denied them.
[Dkt. 22-1, Exh. M, 5/3/13 Trans.; dkt. 22, Decl. Jgmnt. Motion ECF p.8 ¶ 16]. The
transcript records the following exchange:
Mr. Klar: … I’m here to represent the three other -- … But I’ve
been told I will not be allowed to speak on their behalf, is that
correct, for the record, but that my client may make a written
statement?
Chairman Hennessey: Yes, that would be fine, Mr. Klar.
Klar: And so my clients can appear to make a statement in
person or submit a written statement, but I cannot speak on
their behalf? Because they’re my clients too. But – so – they
have a right to legal counsel.
Hennessey: Mr. Williamson8 – … is Mr. Klar your attorney?
Mr. Williamson: Yes – yes, he is.

7

The complaint impliedly incorporates this transcript and also relies on it. The
Court may also take judicial notice of this transcript for purposes of a Rule
12(b)(6) analysis.
8
The transcript does not indicate whether “Mr. Williamson” refers to Daniel,
Gordon, or another male.
49

Klar: So – but – so I’m not? Because he’s given a statement,
I’ve been told in the past I’m not allowed to speak on his
behalf?
Hennessey: Well you may speak on … your clients’ behalf.
He’s already given us obviously his thoughts and ideas in a –
in a very detailed statement, so perhaps you could be very
brief, Mr. Klar.
Klar: Well – and again may I speak on behalf of Dane as well?
Hennessey: I would like to – I would suggest that you – we will
hold decision until we get a written statement from –
Klar: Okay. Well I just – for the record I except to that because
if I can only hand in his statement, I’m just a delivery boy. And
I have heard a social worker comment on what Mr. Messenger
said this morning, and as a lawyer, I would think I could say
what my client said last night.
Hennessey: I understand that, Mr. Klar –
Klar: And so – just for the record, I just wanted to make that
clear.
Hennessey: But your client is an adult and not present, so we
just have –
Klar: That’s right, but –
Hennessey: -- but – but that would be helpful –
Klar: My interpretation of the law is that he would be allowed
to have counsel here to speak for him –
Hennessey: Mmm-hmm –
Klar: -- whatever his age. [Klar proceeds to make a three
paragraph statement regarding the impact on Dane Williamson
and the Plaintiffs’ belief that the PSRB does not have the
power to properly anticipate the future non-physical impact on
Dane Williamson].
[Dkt. 22-1, Exh. M, 5/3/13 Trans. 54:5 – 58:2].
This exchange reveals first that Mr. Klar and a Mr. Williamson were present
at the May 3, 2013 PSRB hearing. Dane Williamson was not present. Although

50

Mr. Williamson had already submitted a “very detailed statement” in writing, the
PSRB nonetheless permitted Attorney Klar to speak at the hearing on Mr.
Williamson’s behalf, which they were not obligated to do pursuant to the
regulations allowing the presentation of either a written or oral statement.
Second, this exchange demonstrates that Dane Williamson had prepared a
written statement but that Attorney Klar also wanted to speak on Dane
Williamson’s behalf at the hearing; Klar then took issue with the PSRB’s
preference for Dane’s written statement rather than his counsel’s statement on
his behalf, as this would make Klar “just a delivery boy.” Third, and finally,
despite the fact that the PSRB preferred to consider Dane’s actual written
statement, Klar was then allowed to make an oral statement regarding the impact
on Dane Williamson and the Plaintiffs’ belief that the PSRB does not have the
power to properly anticipate the future non-physical impact on Dane Williamson.
The PSRB thus did not violate due process when it attempted to comply with its
rule allowing either a written or oral statement, and nonetheless then allowed Klar
to proceed with his oral statement on Dane Williamson’s behalf despite the
existence of Dane Williamson’s written statement. It was not unreasonable for
the PSRB to have concluded that Dane’s written statement constituted his
statement on the matter before the Board, or to have precluded Klar from
speaking on Dane’s behalf given that Dane had prepared a written statement.
This transaction does not constitute a violation of due process.
In sum, even if the Plaintiffs were to amend their complaint to state the
correct defendant, they have not stated a claim upon which relief may be granted
51

pursuant to Rule 12(b)(6) for violation of due process in the November 18, 2011 or
May 3, 2013 hearings, nor would amendment of either of these two claims be
productive. The Plaintiffs’ rights to speak were honored at both hearings,
evidenced by the fact that the Plaintiffs knew they had the opportunity to be
heard and expressed such through their written statements to the Board.
Nothing in the record suggests that the Plaintiffs who submitted written
statements also reserved any right to have their attorney supplement their
statements at the hearings. Moreover, the record does not indicate, where a
victim did not submit a written statement, that his or her legal representative was
barred from speaking on his or her behalf at a subsequent PSRB hearing. The
Plaintiffs were thus not denied the right to make a statement at any complained-of
hearing. Consequently amendment is futile.
4. Right to Notice of Alleged Deprivations
Lastly, the Plaintiffs claim that their due process rights were violated
because the PSRB did not notify them before depriving them of their right to
counsel and to be heard. As none of the subject incidents constituted a
deprivation of the Plaintiffs’ constitutional rights, this claim is moot. Moreover,
the rules and regulations allowing a victim to present either a written or oral
statement, but not both, are clear and thus constituted adequate notice of the
content of this particular rule.
b. Equal Protection

52

The Plaintiffs allege violations of their rights to Equal Protection in two
ways. First, they claim that the PSRB’s curtailment of their rights to allocution
and counsel constitute violations of Equal Protection “because these restrictions
are not imposed on victims who participate in the criminal justice system.
Victims of crimes in which the perpetrator is adjudicated to be not guilty by
reason of mental illness or disease, are afforded disparate and inferior
constitutional protections under existing Connecticut law, which disparity is not
justified by a rational state interest.” [Dkt. 21, Am. Compl. ¶25]. Second, they
allege that the PSRB’s restrictions on consideration of the Plaintiffs’ non-physical
injury infringe their rights to Equal Protection, as “these restrictions are not
imposed on victims who participate in the criminal justice system.” [Id. at ¶33].
The Defendant counters that no Equal Protection violation exists because the
victims of acquittees are not similarly situated to victims of convicted offenders.
The Plaintiffs’ Equal Protection claims could not survive a motion to
dismiss pursuant to 12(b)(6) and cannot be amended such that the claim could be
viable. First, although the Plaintiffs claim that they have been deprived of or not
afforded procedural rights allowed to victims of crimes perpetrated by convicted
criminals (as opposed to those found not guilty by reason of mental illness or
defect), the Plaintiffs have not sufficiently asserted in their motions or opposition
what rights the group to which they seek to compare themselves are afforded, the
source of these rights, or how those rights differ from those afforded to victims
such as Plaintiffs. Although this defect is not fatal, the Plaintiffs’ equal protection
claims must fail as the protections afforded to each group under Connecticut law
53

are equivalent and, even if they are not, the Plaintiffs and the victims of crimes
perpetrated by convicted criminals are not similarly situated.
The Fourteenth Amendment declares that “[n]o State shall … deny to any
person within its jurisdiction the equal protection of the laws.” U.S. CONST.
Amend. XIV. “The Equal Protection Clause requires that the government treat all
similarly situated people alike.” Harlen Associates v. Inc. Vill. of Mineola, 273
F.3d 494, 499 (2d Cir. 2001) (citing City of Cleburne v. Cleburne Living Ctr., 473
U.S. 432, 439 (1985) (the Equal Protection Clause “is essentially a direction that
all persons similarly situated should be treated alike.”)).
The general rule applicable to statutes that draw classifications between
protected groups is “that legislation is presumed to be valid and will be sustained
if the classification drawn by the statute is rationally related to a legitimate state
interest.” City of Cleburne, Tex., 473 U.S. at 440. Certain classifications based on
membership in a vulnerable class such as race, alienage, national origin, or
gender, however, are subject to more stringent analysis: strict scrutiny or
intermediate review. See id.; U.S. v. Virginia, 518 U.S. 515 (1996). Moreover,
where a plaintiff does not allege classification based on membership in a
protected class (ie, classification based on race, alienage, national origin, or
gender), he may bring a so-called “class of one” equal protection claim alleging
that he “has been intentionally treated differently from others similarly situated
and that there is no rational basis for the difference in treatment.” Harlen
Associates, 273 F.3d at 499.

54

i. Protections Afforded to Victims Are Equivalent
The Plaintiffs contend that their rights as victims of acquittees differ
unconstitutionally from the rights afforded to victims of convicted criminals.
However, the protections afforded each group are, in this Court’s review, the
same and thus no equal protection violation exists.
First, the Plaintiffs contend that their right to equal protection has been
infringed because they are “not recognized as victims of crimes at all” due to the
“peculiar legal status which attaches to those found not guilty by reason of
insanity or other comparable legal determination.” [Dkt. 4-4, Ps’ Motion for PI,
ECF p.8]. The Plaintiffs claim, without citing to any authority, that “[c]urrently,
only a very few states legislatively address the category of victim of which all
Plaintiffs in this matter are members: people traumatized by the actions of those
who have been excused from criminal culpability by law because of
psychological illness.” [Id.]. However, the Plaintiffs have failed to note that
pursuant to the very Connecticut statutes and regulations they are challenging in
this action, victims of acquittees are explicitly categorized as victims, a
categorization which provides them with procedural rights. Consequently, the
argument that the Plaintiffs are not recognized as victims at all is erroneous.
Second, and most importantly, the Plaintiffs contend that, while their rights
to allocution and counsel and to have the risk of emotional harm borne of an
acquittee’s release considered have been infringed (which this Court does not
credit), the rights of victims of convicted criminals are not similarly proscribed.

55

The Plaintiffs cite to almost no legal authority to support the claim that the
statutory protections afforded to them are in some way different or inferior to
those provided to crime victims. Indeed, this Court’s review demonstrates that
the rights afforded to both groups of victims are the same and therefore no
disparity exists such that the Plaintiffs could cure their equal protection claims.
The only reference to Connecticut law regarding victims’ rights to which
the Plaintiffs cite in support of their claim that their rights to allocution and
counsel have been abridged is Article 1, section 8.b. of the Connecticut
Constitution, which provides certain rights to victims of crime and which the
Plaintiffs contend ignores victims of acquittees. This section states in full:
b. In all criminal prosecutions, a victim, as the General
Assembly may define by law, shall have the following rights:
(1) the right to be treated with fairness and respect throughout
the criminal justice process; (2) the right to timely disposition
of the case following arrest of the accused, provided no right
of the accused is abridged; (3) the right to be reasonably
protected from the accused throughout the criminal justice
process; (4) the right to notification of court proceedings; (5)
the right to attend the trial and all other court proceedings the
accused has the right to attend, unless such person is to
testify and the court determines that such person's testimony
would be materially affected if such person hears other
testimony; (6) the right to communicate with the prosecution;
(7) the right to object to or support any plea agreement entered
into by the accused and the prosecution and to make a
statement to the court prior to the acceptance by the court of
the plea of guilty or nolo contendere by the accused; (8) the
right to make a statement to the court at sentencing; (9) the
right to restitution which shall be enforceable in the same
manner as any other cause of action or as otherwise provided
by law; and (10) the right to information about the arrest,
conviction, sentence, imprisonment and release of the
accused. The General Assembly shall provide by law for the
enforcement of this subsection. Nothing in this subsection or
in any law enacted pursuant to this subsection shall be
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construed as creating a basis for vacating a conviction or
ground for appellate relief in any criminal case.
Conn. Const. art. I, § 8.b.
The Court notes that section 8.b. confers rights on victims of crime during
the process of criminal prosecution, and that the Plaintiffs have not claimed that
their rights were abridged during the criminal prosecution of David Messenger
and prior to his remand to the PSRB’s jurisdiction. Moreover, the right to
information about the imprisonment and release of the accused pursuant to
Article First, a right which endures after an accused’s conviction – also exists as
to victims of acquittees. As discussed previously, if the acquitting court
determines that an acquittee’s victim has requested notice, “it shall notify the
victim of any hearing held by the court” and, after the PSRB commences
jurisdiction over the acquittee, the PSRB is obligated to “make a reasonable effort
to notify the victim of any board hearings or orders or of any escape of the
acquittee.” Conn. Gen. Stat. § 17a-601(b). This notice must be written and given
“within a reasonable time.” Regs. Conn. State Agencies § 17a-581-15. A victim
“may appear at any court or board hearing concerning the acquittee to make a
statement.” Conn. Gen. Stat. § 17a-601(b). Within twenty-five days of the
conclusion of any PSRB hearing, the PSRB must provide written notice of its
decision to the acquittee, the acquittee’s counsel, the state’s attorney, and any
victim. Conn. Gen. Stat. § 17a-596(h). Further, the Plaintiffs have not alleged that
the PSRB has failed to notify them of any Board hearings or any escape by Mr.
Messenger or that the court failed to notify them previously. In sum, nothing in
Article 1, section 8.b. indicates that victims of accused men and women who are
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later acquitted pursuant to an insanity defense are deprived pursuant to the
Connecticut Constitution of any right bestowed on victims of convicted criminals
by that document.9
The Plaintiffs also argue that “[t]he removal of criminal culpability from
those with mental illness leaves victims of their actions with essentially civil
recourse only, augmented where applicable by the administrative proceedings
such as those of the PSRB,” which proceedings “are almost uniformly more
restrictive on remedies and rights of victims …” [Dkt. 22, Decl. Jgmnt. Motion
ECF pp.11-12]. Aside from failing to explain how the rights afforded to them
before the PSRB are more restrictive than the rights afforded to victims of
convicted offenders, this Court’s review indicates that the rights to allocution and
counsel afforded to both groups are equal, and thus amendment of the Plaintiffs’
equal protection claims would be futile.
As previously discussed in depth, the PSRB’s rules and regulations state
that an acquittee’s victim has the right to be notified of and to attend any hearing
before the board and the right to make a statement in person or, if he will not
attend the hearing, to submit a written statement to the PSRB as part of the
record to be considered at the hearing. Such a statement may express a victim’s

9

Indeed, “[b]y its explicit terms, the victim's rights amendment contemplates
additional implementing legislation to give effect to its provisions.” State v. Gault,
304 Conn. 330, 340 (2012). The statutes and regulations providing procedural
rights to victims of acquittees are just such implementing legislation. Moreover,
“there are no statutes providing for a private right of action under Article first, §
8(b), nor is there any appellate authority providing for such a cause of action.”
Kolton v. Stamford Police Dep't, FSTCV116008948S, 2013 WL 7084786 (Conn.
Super. Ct. Dec. 27, 2013).
58

opinion on the matter before the Board. The regulations specifically allow victims
to be represented by counsel, as the definition of “victim” encompasses “a
person who is a victim of a crime, the legal representative of such person or a
member of a deceased victim’s immediate family.” Conn. Gen. Stat. § 17a-601(a).
The rights of the victims of convicted offenders are nearly identical. At the
post-conviction and post-sentencing stage, such a victim, defined as “a person
who is a victim of a crime, the legal representative of such person, a member of a
deceased victim's immediate family or a person designated by a deceased
victim,” has the same right to allocution before the Board of Pardons and Paroles
as do victims before the PSRB:
At a hearing held by a panel of the Board of Pardons and
Paroles for the purpose of determining the eligibility for parole
of an inmate incarcerated for the commission of any crime,
such panel shall permit any victim of the crime for which the
inmate is incarcerated to appear before the panel for the
purpose of making a statement for the record concerning
whether the inmate should be released on parole or the nature
of any terms or conditions to be imposed upon any such
release. In lieu of such appearance, the victim may submit a
written statement to the panel and the panel shall make such
statement a part of the record at the parole hearing.
Conn. Gen. Stat. § 54-126a(a), (b). Although this language differs slightly from
that employed in the statutes and regulations governing the PSRB, the import is
identical: both sets of victims have the right to make a statement before their
respective board regarding the matter before the board or, if they do not intend to
be present at a hearing, to submit a written statement for inclusion as part of the
record. Neither class of victim enjoys the right to make both an oral and written

59

statement. Both classes of victim also enjoy a right to counsel, as a victim
includes the legal representative of a victim in both instances.
Although the rights of victims at criminal sentencings are not necessarily
germane to this case as the instances in which the Plaintiffs believe their rights to
have been violated each occurred before the PSRB, an administrative board,
rather than a court, it is notable that victims of offenders who have been found or
have pled guilty or nolo contendere, and victims of youthful offenders, possess
effectively similar rights to allocution and counsel as do victims of acquittees at
hearings before the PSRB. Prior to imposition of a sentence or acceptance of a
plea by a non-youthful offender, “the court shall permit any victim of the crime to
appear before the court for the purpose of making a statement for the record,
which statement may include the victim's opinion of any plea agreement.” Conn.
Gen. Stat. § 54-91c(b). Further,
[i]n lieu of such appearance, the victim may submit a written
statement or, if the victim of the crime is deceased, the legal
representative or a member of the immediate family of such
deceased victim may submit a statement of such deceased
victim to the state's attorney, assistant state's attorney or
deputy assistant state's attorney in charge of the case,
who then must file the statement with the sentencing court to be made part of the
record at sentencing. Id. Victims of youthful offenders likewise have the right “to
submit a written statement for the record, or to appear before the court and make
a statement for the record” regarding a youthful offender’s plea agreement or
sentence. Conn. Gen. Stat. § 54-76q. Thus, a victim of a convicted offender or of
a youthful offender may appear at a court hearing to make a statement, or may

60

submit a written statement in lieu of such appearance, the same right possessed
by victims of acquittees. Moreover, the definition of a “victim” of a non-youthful
convicted offender is “a person who is a victim of a crime, the legal
representative of such person, a member of a deceased victim's immediate family
or a person designated by a deceased victim in accordance with section 1-56r,”
which is nearly identical to the definition applied to a victim of an acquittee,
demonstrating that both victims are entitled to the same right to counsel. Conn.
Gen. Stat. § 54-91c(a).
The Plaintiffs spend much time discussing the differing legal treatment and
status of acquittees and convicted offenders, and argue that this “shift in legal
status is what diminishes or completely erases the legal status of the very real
victims of very real crimes that were often very violently perpetrated,” and that
victims of acquittees experience more anxiety as a result of the differing legal
status of acquittees. [Dkt. 4-4, Ps’ Motion for PI, ECF p.10; see also dkt. 4-4 p.9].
As victims of acquittees and victims of convicted criminals are entitled to the
same effective statutory rights to allocution and counsel, though, this line of
argument is moot. Moreover, the fundamentally different legal status of
acquittees and convicted offenders is the very reason that the victims of the two
groups are not similarly situated such that a comparison of the two groups could
lead to a cognizable equal protection claim, as discussed infra. See section
IV.b.i, infra.
As a final note, the Plaintiffs’ observations about the federal Crime Victims’
Rights Act, which they claim “only extends its protections and remedies to
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victims of federal crimes resulting in criminal conviction,” is irrelevant to the
Plaintiffs’ argument. [Dkt. 4-4, Ps’ Motion for PI, ECF p.11]. This Act applies to
victims of federal crimes; Mr. Messenger did not commit a federal crime and was
thus prosecuted in state court and under Connecticut law. The Act and its
protections are inapplicable to the Plaintiffs in this case.
In sum, victims of acquittees and victims of convicted criminals are entitled
to effectively identical statutory rights to allocution and counsel before the
respective boards with jurisdiction over offenders and acquittees. Consequently,
amendment of the Plaintiffs’ equal protection claims as to these rights would be
futile as these claims could not survive a motion pursuant to Rule 12(b)(6).
i. The Victim Groups are not Similarly Situated
However, even if the protections afforded to these two groups of victims
differ, victims of acquittees are not similarly situated to victims of crime
perpetrated by convicted criminals such that an equal protection violation would
be viable.
As previously discussed, a verdict of not guilty by reason of insanity
“establishes two facts: (i) the defendant committed an act that constitutes a
criminal offense, and (ii) he committed the act because of mental illness.”
Foucha v. Louisiana, 504 U.S. 71, 76 (1992). “The purpose of commitment
following an insanity acquittal, like that of civil commitment, is to treat the
individual's mental illness and protect him and society from his potential
dangerousness.” Jones v. United States, 463 U.S. 354, 368 (1983); see also State
62

v. March, 265 Conn. 697, 715-16 (2003); Clark v. Arizona, 548 U.S. 735, 779 n. 45
(2006) (same); Payne v. Fairfield Hills Hosp., 215 Conn. 675, 683 (1990). Thus,
“the confinement of insanity acquittees, although resulting initially from an
adjudication in the criminal justice system, is not punishment for a crime.”
Payne, 215 Conn. at 683; see also State v. Harris, 277 Conn. 378, 394 (2006) (“the
primary purpose of continued commitment proceedings is to protect society and
to treat the acquittee's mental illness, not to punish the acquittee”). Those
acquitted by reason of insanity or mental illness effectively opt out of the criminal
justice system in favor of a system designed to treat their mental illness such that
they may eventually rejoin society as healthy individuals. Acquittees are thus not
legally guilty of the crime for which they were charged.
In contrast, the purpose of imprisonment of convicted criminals – who
have been found guilty of the crime for which they were charged – is punitive:
“[a] State, pursuant to its police power, may of course imprison convicted
criminals for the purposes of deterrence and retribution.” Foucha, 504 U.S. at 80.
See also Jones, 463 U.S. at 369 (noting that a state may punish a person
convicted of a crime even if satisfied that he is unlikely to reoffend, but that
“[d]ifferent considerations underlie commitment of an insanity acquittee. As he
was not convicted, he may not be punished. His confinement rests on his
continuing illness and dangerousness”); State v. Fowlkes, 283 Conn. 735, 744
(2007) (The “traditional aims of punishment, namely, [are] retribution and
deterrence”). Consequently, punitive interests are not dispositive to the question
of whether an acquittee should be granted temporary, conditional, or final release
63

by the PSRB, which must grant such release to an acquittee when he has
regained his sanity or is no longer dangerous. See Jones, 463 U.S. at 368 (“[t]he
committed acquittee is entitled to release when he has recovered his sanity or is
no longer dangerous.”); Richard S. v. Carpinello, 589 F.3d 75, 81 (2d Cir. 2009)
(“The United States Supreme Court has long held that the Due Process Clause
allows an insanity acquittee to be confined as long as he is both mentally ill and
dangerous, but no longer.”). So long as “an acquittee has a mental illness that
requires confinement for purposes of treatment and protection [even if this
illness is different from that forming the basis of his confinement], his
confinement to a psychiatric facility is reasonably related to the purpose of
commitment and is, therefore, constitutional.” State v. March, 265 Conn. 697,
715-16 (2003) (citations omitted).
The composition of the entities regulating acquittees and convicted
offenders differs according to the disparate goals of each system. As noted, the
PSRB consists of six members: a psychiatrist, a psychologist, a person with
substantial experience in the process of probation, an attorney barred in
Connecticut, a member of the public with substantial experience in victim
advocacy, and a member of the general public. Conn. Gen. Stat. § 17a-581(a), (b).
The board of Pardons and Paroles, in contrast, consists of eighteen members
appointed by the governor and approved by both houses of the General
Assembly, twelve of whom serve exclusively on parole release panels. Conn.
Gen. Stat. § 54-124a(a). Each member “shall be qualified by education,
experience or training in the administration of community corrections, parole or
64

pardons, criminal justice, criminology, the evaluation or supervision of offenders
or the provision of mental health services to offenders.” Id. While the PSRB
must include two mental health professionals, the Board of Pardons and Paroles
need not contain any.
As a result of the fundamental differences in the purposes of commitment
and imprisonment and society’s differing interests in acquittees and convicted
criminals, victims of these two groups cannot be considered similarly situated for
purposes of the Plaintiffs’ desired rights in PSRB hearings. The purposes of
PSRB hearings differs from both sentencing hearings conducted by the court and
parole hearings conducted by the Board of Pardons and Paroles and are not
comparable for purposes of an equal protection analysis. Where the state of
Connecticut cannot have a punitive or retributive interest in the outcome of a
PSRB hearing as to an acquittee’s mental health, nor can a victim. As such,
where the state may have an interest in learning the non-physical impact a crime
has had on the victim of a convicted criminal for purposes of determining how
heavily the state’s punitive interest weighs in crafting an appropriate sentence or
in recommending parole from prison, the state does not have the right or the
ability to consider such evidence when determining whether an acquittee is
mentally stable enough for release to the community. Nor can the state have an
interest in a victim’s or his counsel’s non-material and non-relevant comment(s)
on evidence presented at a PSRB hearing, where such evidence could not speak
to the acquittee’s mental health but rather only to punitive or retributive
considerations. See, e.g., Connelly v. Comm'r of Correction, 258 Conn. 374, 387
65

(2001) (“equating a term of imprisonment with a period of commitment is like
comparing apples with oranges. A commitment following an insanity acquittal is
not a sanction, and its purpose, therefore, is entirely different from that of a
criminal sentence.”).
Consequently, the Plaintiffs’ equal protection claims are not cognizable
and amendment of the complaint would be futile.
ii. Level of Scrutiny Applicable: Rational Basis Review
Lastly, as the Plaintiffs here have failed to successfully allege that a
fundamental right has been infringed, have not articulated a reason for this Court
to apply strict or intermediate scrutiny, and do not assert membership in a
protected class, rational basis review must apply to their equal protection claims.
However, as the Plaintiffs’ equal protection claims fail because they have not
articulated how their rights differ from those afforded to victims of convicted
offenders, it is unnecessary for the Court to perform this analysis.10
Consequently, amendment of Plaintiffs’ two equal protection claims is futile.
Amendment is DENIED.

10

The Plaintiffs here have argued that “[t]here is no rational basis for the State of
Connecticut to treat the[ ] classes of victims differently: on the contrary, if there
were a rationale for disparate treatment, it would be that victims of acts by the
mentally ill merit more sensitive and thorough treatment than those where there
has been criminal adjudication and thus clear entitlement to restitution,
retribution, and allocution for victims identified therein.” [Dkt. 22, Decl. Jgmnt.
Motion ECF p.13]. This Court cannot find that Connecticut treats victims of
acquittees differently than victims of convicted offenders, and it would be
patently inappropriate and a violation of separation of powers for this Court to
create and to grant, in the absence of any due process violation, more rights to
victims of acquittees than are possessed by victims of convicted offenders.
66

V.

Conclusion
For the foregoing reasons, the Court denies the Plaintiffs leave to amend

their complaint to name the correct defendant, as amendment would not cure the
underlying deficiencies in their claims. The Court further concludes that
amendment of the Plaintiffs’ claims for violations of due process and equal
protection would be futile, as the Plaintiffs could not add factual content
sufficient to make these claims viable such that they could survive a motion
under Rule 12(b)(6) or such that they could prevail on their motions for
declaratory judgment or preliminary injunction. The Clerk is directed to close this
case.
IT IS SO ORDERED.

________/s/______________
Hon. Vanessa L. Bryant
United States District Judge
Dated at Hartford, Connecticut: August 13, 2014

67