NANCY BURTON v. FREEDOM OF INFORMATION COMMISSION ET AL.
AC 36821
Gruendel, Alvord and Mullins, Js.
Argued September 11—officially released December 15, 2015
(Aрpeal from Superior Court, judicial district of New Britain, Prescott, J.; Young, J.)
The ‘‘officially released’’ date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the ‘‘officially released’’ date appearing in the opinion. In no event will any such motions be accepted before the ‘‘officially released’’ date.
All opinions are subject to modification and technical correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest print version is to be considered authoritative.
The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connеcticut.
******************************************************
Kirsten S. P. Rigney, assistant attorney general, with whom, on the brief, was George Jepsen, attorney general, for the appellee (defendant Commissioner of
GRUENDEL, J. The sole issue in this appeal is whether the plaintiff, Nancy Burton, had standing to appeal from a decision of the Freedom of Information Commission (commission) declining to impose a civil penalty against the defendant Daniel Esty, then Commissioner of Energy and Environmental Protection.1 We conclude that the plaintiff lacked standing and affirm the trial court’s judgment dismissing the appeal.2
The following undisputed facts are relevant. On August 23, 2012, the plaintiff e-mailed the defendant a request pursuant to the Freedom of Information Act (FOIA) (
The commission held hearings in February and April of 2013, at which the plaintiff presented testimony, exhibits and argument, asking the commission to impose a civil penalty against the defendant for his alleged violation of FOIA. The commission had the power to impose a civil penalty, as the relevant provision of FOIA lists several ordinary forms of relief the commission ‘‘may’’ provide then states that ‘‘[i]n addition . . . the commission may, in its discretion, impose . . . a civil penalty of not less than twenty dollars nor more than one thousand dollars,’’ payable to the state, against public officials who violate FOIA without reasonable grounds, or against litigants who pursue frivolous FOIA complaints solely to harass an agency. (Emphasis added.)
In June, 2013, the commission issued a decision holding that the defendant had violated FOIA by failing to timely reply to the plaintiff’s FOIA request. The commission found that although the defendant had not replied in time, he had given the plaintiff the records she sought in October, 2012, one and one-half months after her request and four months before the first commission hearing. The commission found that the defendant had since established and reviewed protocols to ensure future compliance with FOIA. After considering the entire record, the commission ordered that: ‘‘[h]enceforth, the [defendant] shall comply promptly with [FOIA].’’ The commission did not order the defendant to turn over any additional documents, having found that he had already complied in October, 2012, and it did not impose a civil penalty against the defendant.
The plaintiff appealed to the Superior Court, stating that ‘‘[t]he [commission] acted arbitrarily, capriciously
We begin with the standard of review. As this aрpeal arises from a motion to dismiss, the question is whether the pleadings, if presumed true and construed in favor of the plaintiff, set forth sufficient facts to establish that the plaintiff had standing. See Connecticut Independent Utility Workers, Local 12924 v. Dept. of Public Utility Control, 312 Conn. 265, 273, 92 A.3d 247 (2014). That question is one of law, over which our review is plenary. Id.
The requirement that a party have standing is fundamental. ‘‘[A] party must have standing to assert a claim in order for the court to have subject matter jurisdiction over the claim.’’ (Internal quotatiоn marks omitted.) Lewis v. Slack, 110 Conn. App. 641, 643, 955 A.2d 620, cert. denied, 289 Conn. 953, 961 A.2d 417 (2008). ‘‘Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he [or she] has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy.’’ (Internal quotation marks omitted.) Sadloski v. Manchester, 228 Conn. 79, 84, 634 A.2d 888 (1993), on appeal after remand, 235 Conn. 637, 668 A.2d 1314 (1995). ‘‘[T]he court has a duty to dismiss, even on its own initiative, any appeal that it lacks jurisdiction to hear. . . . Where a party is found to lack standing, the court is consequently without subject matter jurisdiction to determine the cause.’’ (Citation omitted; internal quotation marks omitted.) Lewis v. Slack, supra, 643–44.
Standing may derive from either classical or statutory aggrievement. Andross v. West Hartford, 285 Conn. 309, 322, 939 A.2d 1146 (2008). Aggrievement is also expressly required by the statutes that govern a FOIA appeal. See
I
Classical aggrievement is the ordinary judicial analysis of whether the facts alleged include conduct that has injured or likely will injure a specific, personal, legal interest of the party. McWeeny v. Hartford, 287 Conn. 56, 64, 946 A.2d 862 (2008); see also Kelly v. Freedom of Information Commission, 221 Conn. 300, 308–309, 603 A.2d 1131 (1992) (applying classical aggrievement test in FOIA appeal). Here, the question is whether the commission’s decision not to impose a civil penalty against the defеndant injured a specific, personal, legal interest of the plaintiff. We conclude that it did not. Even if we assume, without deciding, that an agency’s failure to impose a civil penalty against a party’s opponent can aggrieve the party, it does not do so where, as here, the underlying statute grants the party no right to that penalty as a remedy.
A
At the threshold, this case presents a novel issue under Connecticut law—whether an agency’s failure to impose a civil penalty against a party’s opponent can ever aggrieve that party when the penalty is payable not to her but to the state. We do not resolve this broad issue and instead decide the case on the narrower ground that, at a minimum, a party is not aggrieved if the underlying statute granted her no right to the civil penalty as a remedy.
Two federal cases, which discuss the broader issue in the context of standing under article three of the United States constitution, also offer guidance on the narrower issue. We note that we ‘‘are not required to apply federal precedent in determining the issue of aggrievement.’’ Mystic Marinelife Aquarium, Inc. v. Gill, 175 Conn. 483, 494, 400 A.2d 726 (1978). Nevertheless, standing under federal law often informs our discussion of standing under Connecticut law.4 See, e.g., id., 492–94 (quoting various federal cases); Andross v. West Hartford, supra, 285 Conn. 328–29 (same); Connecticut Associated Builders & Contractors v. Hartford, 251 Conn. 169, 185, 740 A.2d 813 (1999) (noting that Connecticut has adopted federal test for representational standing); but see State v. McElveen, 261 Conn. 198, 212, 802 A.2d 74 (2002) (rejecting federal mootness test in favor of more liberal standard); Andross v. West Hartford, supra, 329–35 (rejecting federal expansion of standing to permit widely shared injury in fact).
In the first case, the court held that a plaintiff lacked standing to sеek a civil penalty against a company for violations of a federal statute where those violations had wholly ceased by the time the complaint was filed.
In the second case, the court held that a plaintiff had standing to seek a civil penalty against a company for violations of a federal statute, where those violations were ongoing at the time the complaint was filed. Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 188–89, 120 S. Ct. 693, 145 L. Ed. 2d 610 (2000). The statute in that case, while containing no section expressly labeled ‘‘relief,’’ included the civil penalty without distinction in a sentence listing forms of relief, at the end of the subsection defining the citizen plaintiff’s cause of action; it also used language very similar to that of the statute in Steel Co.6 See
Both of these cases assumed that Congress intended the relevant statute to grant the citizen plaintiff a right to the civil penalty as a remedy. Indeed, the majority in Friends of the Earth, Inc., relied heavily on legislative history to that effect. See Friends of the Earth, Inc., v. Laidlaw Environmental Services, (TOC), Inc., supra, 528 U.S. 185.
In light of these cases, we assume without deciding the broader issue—that, under Connecticut law, an agency’s failure to impose a civil penalty against a party’s opponent can aggrieve the party. We now hold, under Connecticut law, that at a minimum, if a statute does not grant a party the right to seek a civil penalty as a remedy, then that party is not aggrieved by an agency’s failure to impose the penalty against her opponent. This holding is in accord with federal precedent and is a logical extension of our traditional rule that a plaintiff must have a ‘‘legal interest’’ in the relief sought. See McWeeny v. Hartford, supra, 287 Conn. 64.
B
Turning then to the plaintiff’s claim, we conclude that although she has alleged violations of FOIA that were ongoing at the time she filed her complaint, she still is not aggrieved by the commission’s nonimposition of a civil penalty because Connecticut’s FOIA does not authorize citizen plaintiffs to seek a сivil penalty as a remedy. The plaintiff thus has no legal interest at stake.
Whereas the statutes in Steel Co. and Friends of the Earth, Inc., either labeled the civil penalty explicitly as one form of ‘‘relief’’ a citizen plaintiff could seek, or labeled it implicitly by grouping it without distinction with the other forms of relief a citizen plaintiff could seek, the Connecticut FOIA is different. It lays out two groups of actions the commission may take in a case.7 First, the commission ‘‘may’’ confirm an agency action, declare void certain agency actions, and order prоduc-
There is one exception to this pattern.
First and most importantly, the ‘‘may . . . order’’ clause twice paints the commission action it authorizes as ‘‘relief,’’ both explicitly, by calling it ‘‘relief,’’ and, implicitly, by stating that such action is ‘‘to rectify the denial of any right’’ under FOIA. The two civil penalty clauses in the second group lack such language.
Second, on a more technical level, the syntax of the ‘‘may . . . order’’ clause differs from that of the two civil penalty clauses. Whereas the two civil penalty clauses directly state that imposing a penalty is ‘‘in [the commission’s] discretion,’’ the ‘‘may . . . order’’ clause uses the ‘‘in its discretion’’ language to modify not the primary clause authorizing the commission to order relief but rather the dependent clause qualifying such relief as that which ‘‘the commission, in its discretion, believes appropriate . . . .’’ (Emphasis added.)
Third and finally, the injunctive relief authorized by the ‘‘may . . . order’’ clаuse is a traditional remedy, whereas a civil penalty payable to the state is not. See Steel Co. v. Citizens for a Better Environment, supra, 523 U.S. 105–106 (civil penalties ‘‘would [not] serve to reimburse [defendant] for losses caused by the late reporting, or to eliminate any effects of that late reporting upon the [defendant]’’). We are thus reluctant to infer that the civil penalty is a remedy without strong evidence that the legislature intended it to be one. Here, the overall text and structure of
Within this overall framework of FOIA relief versus FOIA discretionary tools, the civil penalty that the plaintiff seeks here falls into the second category—discretionary tools. She has no right to it as a remedy. The commission’s decision not to impose it thus violates no legal interest of the plaintiff. She is not classically aggrieved.8
II
The other type of aggrievement that may establish standing is statutory aggrievement. Unlike classical aggrievement, statutory aggrievement exists by legislative fiat—where the legislature has enacted a statute that confers standing on anyonе who falls within a certain group. McWeeny v. Hartford, supra, 287 Conn. 64–65. We conclude that the plaintiff is not statutorily aggrieved under any of the statutes she cites.
The quintessential example of statutory aggrievement is in the zoning context, where
The plaintiff cites various provisions in Connecticut’s Uniform Administrative Procedure Act,
The last provision she cites is inapposite for a different reason—it concerns standing to appeal to the commission from an agency decision to withhold records. See
III
Because the plaintiff has established neither classical nor statutory aggrievement, she lacks standing to appeal from the commission’s failure to impose a civil penalty. See Andross v. West Hartford, supra, 285 Conn. 322–24. We thus affirm the judgment of dismissal. ‘‘[T]he court has a duty to dismiss, even on its own initiative, any appeal that it lacks jurisdiction to heаr. . . . Where a party is found to lack standing, the court is consequently without subject matter jurisdiction to determine the cause.’’ (Citation omitted; internal quotation marks omitted.) Lewis v. Slack, supra, 110 Conn. App. 643–44.
The judgment is affirmed.
In this opinion the other judges concurred.