571 A.2d 715 | Conn. Super. Ct. | 1989
Before the court are motions to dismiss1 the above-captioned cases, which are actions in quo warranto and mandamus respectively. In both cases, the plaintiffs are the civil service commission of the city of Waterbury, Edmund Jayaraj, as administrator of the commission and director of personnel of the city of Waterbury, and Jayaraj, individually, as a Waterbury resident and taxpayer.
The defendants in the quo warranto action (No. 087414) are Edward Pekrul, Joseph Pesce, Edward Stephens, James Clary and Phillip Rinaldi, five police officers, who, the plaintiffs claim, have been illegally appointed to the positions of detective/plainclothesman and whose ousters from those positions are sought.
In the mandamus action (No. 087653), the sole defendant is the board of police commissioners of the city of Waterbury, the authority that appointed the five *304
quo warranto defendants to their respective posts.2 The mandamus action seeks to compel the board to appoint Pesce and four other policemen to the position of detective/plainclothesman on the basis of higher ratings on the civil service eligibility list.3 Under Connecticut law, both actions are necessary for the accomplishment of the plaintiffs' purposes: quo warranto to remove the incumbents and mandamus to secure the appointment of the plaintiffs' nominees. Beccia v. Waterbury,
For the purpose of ruling on the motions, the court must accept as true all material factual allegations and construe them most favorably to the plaintiffs. Warth
v. Seldin,
Identical claims for dismissal have been made in both cases. The defendants contend that there is (1) a lack of subject matter jurisdiction, (2) a lack of in personam jurisdiction, (3) an insufficiency of process, and (4) an insufficiency of service of process.
The defendants' claims concerning lack of in personam jurisdiction, insufficiency of process and insufficiency in the service of process can be treated summarily. Although matters of this nature are proper subjects of a motion to dismiss, each of them is considered to have been waived unless asserted within thirty days after the filing of an appearance. Practice Book §§ 142, 143 and 144.
Appearances for the five defendants in the quo warranto action and for the defendant board of police commissioners in the mandamus action were filed on October 31, 1988. The motions to dismiss, however, were not filed until June 16, 1989. A denial, on the basis of the above Practice Book sections, of the defendants' contentions other than the claim of lack of subject matter jurisdiction is proper. As a matter of record, requested extensions of time had expired before the motions to dismiss were filed.4 *306
The claim of an absence of subject matter jurisdiction cannot be waived and must be considered. Practice Book § 145. As presented, the defendants' claim seemingly had two aspects, justiciability and standing, each of which merits a separate discussion.
In asserting a lack of justiciability, the defendants claim that the quo warranto and mandamus actions do not present live controversies that are capable of resolution through the judicial process. See Flast v. Cohen,
With respect to the issue of justiciability, the defendants' "suing oneself" theory cannot be regarded seriously. In Ducharme v. Putnam,
Standing, the other prong of the defendants' attack, is, when questioned, a component of subject matter jurisdiction. Claydon v. Finizie,
Standing can be elusive in application. Flast v. Cohen,
supra, 98-99. As a concept, however, standing has been most often described by the courts in the following terms: "`Standing is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously presented. . . . These two objectives are ordinarily held to have been met when a complainant makes a colorable claim of [a] direct injury he has suffered or is likely to suffer, in an individual or representative capacity.' " (Citations omitted.)Board of Pardons v. Freedom of Information Commission,
Although the two present cases are intertwined as to the desired results, each of them has its own prerequisites. *308 Further, the plaintiffs are acting in different capacities. To determine whether standing exists, the complaints and the status of each plaintiff in relation to them must be examined separately.
A quo warranto action is the procedure to challenge a person's de jure title to public office. Cheshire v.McKenney,
By established case law, Jayaraj, as a Waterbury taxpayer, has standing to bring the quo warranto action.State ex rel. City of Waterbury v. Martin,
Unlike quo warranto, however, taxpayer status does not automatically confer standing on Jayaraj as a mandamus *309
applicant. The reason for the differences lies in the functions served by the two writs. In quo warranto, the burden is on the officeholder and he must rely wholly on the strength of his own title. Cheshire v.McKenney, supra, 257; State ex rel. Southey v. Lashar,
A plaintiff who relies on taxpayer status in bringing suit to contest an action by municipal officials must also demonstrate that the action will cause him to suffer some pecuniary loss or other irreparable injury.American-Republican, Inc. v. Waterbury,
There is nothing in the mandamus complaint that amounts to allegations that Jayaraj, as a taxpayer, was injured, monetarily or otherwise, by the alleged illegal appointments of the board of police commissioners or that he, aside from the general public, is entitled to *310 have specific other persons appointed as detectives/plainclothesmen. Consequently, as a taxpayer, Jayaraj lacks standing in the mandamus action.
Civil service in Waterbury is the product of an amendment to the city's charter adopted on November 6, 1962.6 State ex rel. Sloane v. Reidy,
One of the claims of the civil service commission and its director of personnel is that they have standing in a "representative" capacity. If, by the use of this term, these plaintiffs are asserting that they qualify as representative parties in the manner described in StateMedical Society v. Board of Examiners in Podiatry,
The idea of representative standing has changed in recent years. In Connecticut Assn. of Health Care Facilities
v. Worrell, supra, 614-16, the Supreme Court abandoned its previous holding that a professional association had to be personally injured or have a personal stake in the controversy; see Connecticut Societyof Architects, Inc. v. Bank Building EquipmentCorporation,
All Waterbury police officers are city employees in the competitive division of the classified service, which is administered by the civil service commission. Stateex rel. Sloane v. Reidy, supra, 426.7 Yet even if the commission could qualify as an association,8 the Hunt
criteria cannot be satisfied by the situation at hand. Certain police officers are required defendants in the quo warranto action, which is a necessary forerunner to the mandamus action. Further, the Hunt criteria rest upon the premise that the representative plaintiff is acting for the general benefit of its membership. "`[W]hether an association has standing [to sue] on behalf of its members depends in substantial measure on the nature of the relief sought.' " Automobile Workers
v. Brock,
Whether the civil service commission has demonstrated individualized standing remains to be resolved. The defendants' argument is that the commission does not possess standing at all because there is no provision in the Waterbury charter authorizing the commission to sue or to be sued.9 On this point, several pronouncements must be taken into account. A municipality's charter constitutes its organic law and serves as an enabling act both creating power and prescribing the form in which power must be exercised. WestHartford Taxpayers Assn., Inc. v. Streeter,
One express grant of authority in the Waterbury charter is that the civil service commission is to adopt rules and regulations that shall, inter alia, provide: *313
Open competitive examinations; the establishment of lists of persons eligible for appointment and promotion; and the certification of the person standing highest on the appropriate eligibility list to fill a vacancy. Rules and regulations adopted pursuant to the authority granted by the charter carry a presumption of validity and have the force and effect of law. Griffin Hospital
v. Commission on Hospitals Health Care,
The rules and regulations as adopted state a preferential policy for competitive examinations and contain provisions authorizing the director of personnel to establish promotional and employment lists and, upon receipt of a personnel requisition, to certify the top name from an eligibility list.10 For intradepartmental transfers, the apparent focus of the dispute underlying the quo warranto and mandamus actions, the regulations provide as follows: "The appropriate department head may, at any time transfer an employee in the competitive division under the jurisdiction from one position to another in the same class in the same department. An intra-departmental transfer of an employee to a position of another class shall be made only with the approval of the Director of Personnel. The Director of Personnel shall be notified of such change in assignment."11
The commonly accepted purpose and function of civil service regulations such as those existing in Waterbury is discussed in Shanley v. Jankura,
In Board of Pardons v. Freedom of Information Commission,
supra, 650, the Supreme Court held that the *314
board of pardons had asserted a colorable claim of direct injury in asserting that an order interfered with its deliberative functions. Standing was found on the basis of the board's institutional interest in its decision-making process. Similarly, this court concludes that the allegations by the civil service commission and its director of personnel that the appointments were made in violation of civil service rules and regulations and that compliance with the rules and regulations would have resulted in different appointments, are assertions, in both actions, of direct injury to the institutional interests of the commission as delegated to it by the city's charter. A civil service board has been held to possess standing, as a party directly interested, in a petition for mandamus directing municipal officials to remove alleged illegally appointed employees from office and to appoint others in their stead. State ex rel. Norris
v. Chancey,
The defendants have suggested some additional grounds for dismissal that raise issues that are prudential rather than strictly jurisdictional. See Flast v.Cohen, supra, 97. One such suggestion concerns the existence and status of two related actions, Coleman v. Pekrul, Superior Court, judicial district of Waterbury, Docket No. 084151 (March 7, 1988), and Local1237, American Federation of State, County MunicipalEmployees, Council 15 v. Waterbury (AFSCME), Superior Court, judicial district of Waterbury, Docket No. 084116 (March 8, 1988). The Coleman suit is a quo warranto action brought by one of the nonappointed police officers against the five officers who were named as detectives/plainclothesmen. The city of Waterbury has *315 intervened in the suit as a defendant. The AFSCME suit is an action brought by the police union against the city, the mayor, the superintendent of police, the board of police commissioners, and the five appointed officers. In the AFSCME suit, the relief sought is in the nature of quo warranto coupled with a declaratory judgment.
On July 5, 1988, the court, J. Healey, J., granted a motion by the city to stay proceedings in both cases pending arbitration under the collective bargaining contract between the union and the city. Apparently a question was raised regarding whether the issues in the suits were subject to arbitration since the court noted that the question of arbitrability was itself subject to arbitration. Hartford v. Local 308,
The fact that the pervading issues of the legality of the appointments of the five officers and the nonappointments of five others may be subject to arbitration does not, at this juncture, affect the court's jurisdiction in the present actions although they too might be subject to a stay of proceedings. General Statutes §
The second suggestion is that, as a matter of law, the civil service commission has overstepped its authority because the charter does not provide for the position of detective/plainclothesman.13 Aside from the fact *316
that this claim ignores the allegations that personnel requisitions for such positions came to the commission from the superintendent of police, it presents a matter of defense, and is not a ground for dismissal.14 The essential question seems to be whether the appointment of the five officers as detectives/plainclothesmen was a duty assignment under the control of either the board of police commissioners or the superintendent of police,15 or, whether it was a promotion, which required compliance with the rules and regulations of the civil service commission. In this respect, the present actions appear to be reminiscent of New Haven Police Local530 v. Logue,
The court concludes that the plaintiffs with standing have appeared in both actions and that justiciable issues have been presented, and denies the motions to dismiss the quo warranto and mandamus actions.