80 Conn. App. 100 | Conn. App. Ct. | 2003
Opinion
The plaintiff, Vincent Russo, appeals from the trial court’s dismissal of his application for a writ of mandamus against the defendants, the common council and the mayor of the city of Middletown, for lack of subject matter jurisdiction due to mootness. The plaintiff claims on appeal that the court improperly denied his request for relief because although his claim is con-cededly moot, it falls under the “capable of repetition, yet evading review” exception to the mootness doctrine, and, therefore, his claim is justiciable. In support of this claim, the plaintiff argues that the court improperly found that (1) the exception to the mootness doctrine — “capable of repetition, yet evading review” — did not apply and (2) the ability of citizens to petition for a referendum on the Middletown city budget was an adequate remedy at law. We are not persuaded by the plaintiffs arguments as to the first issue and, thus, affirm the trial court’s judgment that it lacked subject matter jurisdiction.
The court found the following facts, which are not in dispute. The plaintiff, a resident and taxpayer of the city of Middletown, brought an action against Middle-
The court heard arguments on the issue of subject matter jurisdiction and held that the claim had been rendered moot.
We conclude that the court was correct in holding that the plaintiffs action was no longer justiciable due to mootness. However, we do not adopt the reasoning employed by the court in reaching that holding. The appropriate judicial avenue to the relief sought, rather than the political avenue provided in the Middletown city charter, prevents the plaintiffs claims from evading review. Furthermore, the plaintiff has not asserted any facts or arguments that demonstrate that the challenged practice is “capable of repetition.”
We begin by setting forth the appropriate standard of review of a finding of mootness, which is well settled under our law. “Mootness is a question of justiciability . . . .” Wallingford v. Dept. of Public Health, 262 Conn. 758, 766, 817 A.2d 644 (2003). “Because courts are established to resolve actual controversies, before a claimed controversy is entitled to a resolution on the merits it must be justiciable. Justiciability requires (1) that there
In the present case, the plaintiff, via an application for a writ of mandamus, sought an order “compelling the defendant Common Council to publish a corrected 2000-2001 budget using no reduction in assessments for credits under the Connecticut Elderly Property Tax Relief Act . . . .” The plaintiff also sought a similar
An exception to the mootness doctrine exists, however, when the case presents a claim that is “capable of repetition, yet evading review.” See Loisel v. Rowe, 233 Conn. 370, 378, 660 A.2d 323 (1995). In Loisel, our Supreme Court set forth in detail the analysis used in evaluating the applicability of that exception, initially noting that the otherwise moot question must meet three requirements to qualify for review: “First, the challenged action, or the effect of the challenged action, by its very nature must be of a limited duration so that there is a strong likelihood that the substantial majority of cases raising a question about its validity will become moot before appellate litigation can be concluded. Second, there must be a reasonable likelihood that the question presented in the pending case will arise again in the future, and that it will affect either the same
We address the Loisel factors beginning with the third factor, which relates to public importance. See id., 382. We recognize that the manner in which taxes are levied in municipalities is of some public importance. The public importance factor is, thus, satisfied. As our Supreme Court recognized in Loisel, however, “[s]heer public importance . . . cannot remedy a failure to satisfy the other components of the [mootness exception] doctrine.” Id., 387.
We turn now to the first factor set forth in Loisel. It embodies the “evading review” aspect of the exception. The relevant inquiry is whether the nature of the claim presents a “functionally insurmountable time [constraint]” or the challenged action has an “intrinsically limited lifespan.” Id., 383. If so, then it follows that the majority of cases presenting the same question will be rendered moot, and the question never will be resolved. In the present case, the plaintiff argues that the defendants’ conduct is of a limited life span in that “the defendants are free to resume the practice in the next budget, collect millions in unnecessary taxes and then drop the practice again when challenged in court, only to resume it when the new action for mandamus is dismissed.” It is apparent that the plaintiff is arguing that the postcomplaint conduct of the defendants, rather than anything inherent in the budget process itself, could make his claim have a functionally insurmountable time constraint. The plaintiff in this regard misconstrues the meaning of “evading review.” We reiterate the language of our Supreme Court: “[T]he challenged action, or the effect of the challenged action, by
The plaintiffs argument as to the “evading review” factor is wholly without merit in that every civil action considered by a court could “evade review” according to the plaintiffs definition. In every cause of action, if a defendant chose to end the dispute by complying with the plaintiffs demand, the plaintiff could claim that the defendant could change its mind once the action had become moot. That is not the scenario protected by the “capable of repetition, yet evading review” exception to the mootness doctrine. It is not the defendant’s conduct that makes a challenged action “evade review.” The question is whether the challenged action itself has an intrinsically limited life span or would impose a “ ‘functionally insurmountable time [constraint]’ Wallingford v. Dept. of Public Health, supra, 262 Conn. 770 n.12; upon a potential plaintiff. “[T]he ‘capable of repetition, yet evading review’ rule reflects the ‘functionally insurmountable time constraints’ present in certain types of disputes.” Id. Medical treatment disputes, such as refusals to accept blood transfusions because of religious beliefs; see Stamford Hospital v. Vega, 236 Conn. 646, 654—55, 674 A.2d 821 (1996); provide examples of cases involving “ ‘functionally insurmountable time constraints ....’” Wallingford v. Dept. of Public Health, supra, 770 n.12; Loisel v. Rowe, supra, 233 Conn. 383.
We observe that the trial court held that the plaintiffs claim would not evade review because, if the defendants decided to pass a subsequent budget using the method the plaintiff alleged was improper, “the plaintiff
The second factor in determining whether a claim may be reviewed, although technically moot, is whether it is “capable of repetition.” Under Loisel, this analysis requires two primary inquiries: “(1) whether the question presented will recur at all; and (2) whether the interests of the people likely to be affected by the question presented are adequately represented in the current litigation.” Id., 384. There is no dispute that the plaintiff, who is a resident and taxpayer of the city of Middle-town, adequately represents the interests of persons likely to be affected by this case. However, the plaintiffs argument fails under the first inquiry set forth by Loisel regarding whether the claim is “capable of repetition.”
Although the defendants have not conceded that their method of establishing the mill rate was improper, there likewise is no indication that there is a reasonable likelihood the defendants plan to use that method in the future. The plaintiff claims that the defendants had carried on that practice for years, and, therefore, it is “entirely possible that it will be resumed and will again have an impact on the plaintiff . . . .” (Emphasis added.) However, Loisel does not provide an exception to the mootness doctrine when it is merely possible that a question could recur, but rather “there must be a reasonable likelihood that the question presented in the pending case will arise again in the future . . . .” (Emphasis added.) Loisel v. Rowe, supra, 233 Conn. 382. When the conflict between the parties has been resolved to the extent that no immediate relief may be granted, the bare fact that the resolution does not eternally preclude the conduct from arising again does not except the claim from being rendered moot. See Darien v. Estate of D’Addario, 258 Conn. 663, 679-80, 784 A.2d 337 (2001) (“town’s argument that the referendum outcome does not preclude it from revisiting the issue simply means that if and when the town does
We conclude that the plaintiffs claim is moot and not “capable of repetition, yet evading review” under our law.
The judgment is affirmed.
In this opinion the other judges concurred.
The common council of the city of Middletown is the legislative body of the city, holding authority under the Middletown city charter.
The plaintiff also sought attorney’s fees, costs and “such other and further relief as the court deems just and equitable.” If the plaintiff had sought damages arising out of his claim, the issue before us may have been decided differently. See Hallas v. Windsor, 217 Conn. 689, 692, 587 A.2d 149 (1991) (“while cessation of allegedly unconstitutional or illegal activity may render moot a claim for injunctive relief, such cessation will not render moot a case that also states a claim for damages resulting from such activity prior
Although the motion before the court was a motion to strike, “[o]nce the question of lack of jurisdid ion of a court is raised, [it] must be disposed of no matter in what farm, it is presented, . . . and the court must fully resolve it before proceeding further with the case.” (Emphasis added; internal quotation marks omitted.) Olympia Mortgage Corp. v. Klein, 61 Conn. App. 306, 307, 763 A.2d 1055 (2001).
Even if we were to find that this case was not moot, the plaintiffs claim regarding “future budgets” would fail nonetheless due to the impossibility of the remedy sought by the plaintiff. The plaintiffs complaint sought a writ of mandamus to prohibit the use of the grand list reduction in all future budget years. However, a mandamus cannot run indefinitely into the future. A writ of mandamus enforces a complete and immediate right, the existence of which is uncontested. Hennessey v. Bridgeport, 213 Conn. 656, 659, 569 A.2d 1122 (1990); Sterner v. Saugatuck Harbor Yacht Club, Inc., 188 Conn. 531, 533-34, 450 A.2d 369 (1982). There is no guarantee that the Middletown city charter’s budgetary provisions will remain the same because the electors of Middletown are free to amend the charter. There is likewise no guarantee that the present state formulae for reimbursing municipalities for lost revenues under the elderly and disabled property tax relief program will remain constant. In fact, experience teaches us that because state revenues rise and fall, state expenditures, including grants to municipalities, also rise and fall. However, even if we presume that the current conditions will remain the same, that is, the charter and § 12-170aa et seq. will have the same effect, a declaratory judgment could protect the plaintiffs interests in the future.
Chapter VI, § 1, of the charter provides in relevant part that “[wjithin 15 calendar days following the passage of a budget, the electorate of the City shall have the power to challenge the budget by means of a referendum as provided in this Charter.”
As the defendants initially pointed out in their motion to strike, mandamus was not the proper avenue, in the plaintiffs own words, to “compel the defendants ... to stop making an improper reduction in the value of the Middletown Grand List before calculating the mill rate.” (Emphasis added.) The proper method to enjoin a person’s allegedly improper actions is via an injunction. See General Statutes § 52-471 et seq. “A prohibitory injunction is an order of the court restraining a party from the commission of an act.” Tomasso Bros., Inc. v. October Twenty-Four, Inc., 230 Conn. 641, 652, 646 A.2d 133 (1994). In contrast, a writ of mandamus is proper when die plaintiff has a clear legal right to compel the performance of a duty. Chamber of Commerce of Greater Waterbury, Inc. v. Murphy, 179 Conn. 712, 717, 427 A.2d 866 (1980). A mandamus will not properly lie where the plaintiff seeks to establish a right; it cannot act upon a doubtful and contested right. Sterner v. Saugatuck Harbor Yacht Club, Inc., 188 Conn. 531, 533-34, 450 A.2d 369 (1982). In the present case, although the plaintiff claims that the defendants had a duty to calculate the municipal mill rate on the basis of the full grand list, there is nothing in the Middletown city charter that assigns such a duty. Further, the plaintiff has not cited any Connecticut statute that specifically imposes such a duty on the defendants. The plaintiff ultimately seeks the mill rate to be determined in a manner that he claims is proper. Therefore, the plaintiff is actually attempting to establish a right to have the mill rate determined in that way, not to enforce a right that he already has. Although the plaintiff may disagree with the manner in which the defendants determined the mill rate, unless they simply failed to determine a mill rate at all, mandamus is an improper remedy. See Chamber of Commerce of Greater Waterbury, Inc. v. Murphy, supra, 718-19.