Opinion
No. X10 NNH-CV-04-048778S CLD
March 28, 2006
MEMORANDUM OF DECISION
Before the court is the defendant's motion to strike numerous counts of the plaintiffs' thirty-one count complaint. For the reasons set forth herein, the defendants' motion is granted in part and denied in part.
This case began innocuously in May 2004 by way of a three-count complaint in which the plaintiffs challenged the municipal tax assessment of their real property located at 225 Stony Creek Road, Branford, Connecticut. The three counts included an administrative appeal of the action of the Town of Branford Board of Assessment Appeals in valuing the plaintiffs' property, pursuant to General Statutes § 12-117a; an action challenging the municipal defendant's assessment of the plaintiff's property pursuant to General Statutes § 12-119; and a third count against the town of Branford ("Town") and the individual defendants, Barbara Neal ("Neal") and Michael Milici ("Milici"), alleging violations of the Branford Town Code and various statutes and federal and state constitutional provisions, arising out of the defendants' assessment of the plaintiffs' property.
The complaint thereafter underwent various revisions and additions, pursuant to amendments by the plaintiffs as well as a request to revise submitted by the defendants. For present purposes, the most significant additions are counts seeking to invalidate the Town's Grand List for tax years 2002-2004 pursuant to General Statutes § 12-121f. The presently operative complaint, styled Revised Amended Assessment Appeal Application (hereinafter the Complaint) and dated May 31, 2005, now stands at thirty-one counts, many of which were challenged by the defendants in their motion to strike dated December 5, 2005. The plaintiffs filed a timely objection, and the court heard argument on February 23, 2006. For the sake of brevity, the court will include additional facts and procedural history only as is necessary to address the challenged counts.
The law governing the court's consideration of a motion to strike is well-established. "The purpose of a motion to strike is to contest the legal sufficiency of the allegations of any complaint to state a claim upon which relief can be granted. In ruling on a motion to strike, the court is limited to the facts alleged in the complaint. The court must construe the facts in the complaint most favorably to the plaintiff." (Citations and internal quotation marks omitted.) Novametrix Medical Systems v. BOC Group, Inc., 224 Conn. 210, 214, 618 A.2d 25 (1992). "It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." Suffield Devel. Assoc. L.P. v. National Loan Inv., 64 Conn.App. 192, 197, 779 A.2d 822 (2001). "The role of the trial court is to examine the complaint, construed in favor of the plaintiffs, to determine whether the pleading party has stated a legally sufficient cause of action." Dodd v. Middlesex Mutual Assurance Company, 242 Conn. 375, 378, 698 A.2d 859 (1997).
I. Claims under General Statutes § 12-121f (Counts 1-9)
The court first addresses the defendants' motion to strike the first nine counts of the Complaint. Each of these counts is made pursuant to General Statutes § 12-121f seeking the invalidation of the Town's assessment list for the years 2002 (count 9), 2003 (counts 5-8) and 2004 (counts 1-4). The defendants argue that the counts relating to the 2002 and 2003 assessment lists should be stricken because they were not brought within the four-month limitations period prescribed by the statute.
As the defendants have noted, a statute of limitations defense typically must be made by way of a special defense, and therefore is an inappropriate basis for a motion to strike. See Forbes v. Ballaro, 31 Conn.App. 235, 239, 624 A.2d 389 (1993). There are, however, two limited exceptions to this general rule. "The first is when [t]he parties agree that the complaint sets forth all the facts pertinent to the question whether the action is barred by the Statute of Limitations and that, therefore, it is proper to raise that question by [a motion to strike] instead of by answer. The second is where "a statute gives a right of action which did not exist at common law, and fixes the time within which the right must be enforced, the time fixed is a limitation or condition attached to the right — it is a limitation of the liability itself as created, and not of the remedy alone." Id., 239-40 (Internal citations and quotation marks omitted). The defendants contend that their motion to strike is appropriate under both of these exceptions. The court disagrees.
The challenged counts first appeared in the plaintiffs' "Amended Application" dated June 9, 2004. The defendants claim that because these counts appeared more than four months following the "assessment date," (which assessment date, according to the defendants, is October 1 of the years in question, 2002 and 2003) the actions are time barred. According to the defendants, the plaintiffs have pled all facts pertinent to a determination of the statute of limitations issue, such that a motion to strike is appropriate. This contention is belied by the presently operative complaint as well as the plaintiffs' opposition papers.
The exception to the general rule stated above requires an agreement by the parties that the complaint sets forth all facts pertinent to the statute of limitations issue. See Forbes v. Ballaro, supra, 31 Conn.App. at 239-40. For at least two reasons, there is no such agreement in this case. First, the plaintiffs have alleged that they first learned of the facts giving rise to their claim to invalidate the 2003 grand list on June 8, 2004, and learned of the facts pertinent to the invalidation of the 2002 grand list on May 20, 2004. In their opposition to the present motion, the plaintiffs have indicated that they intend to prove, pursuant to General Statutes § 52-595, that the defendants fraudulently concealed the existence of these causes of action. Although the plaintiffs have not explicitly pled § 52-595 in the challenged counts, they are not required to do so at this stage of the pleadings. See id. at 241 n. 9 (Noting that plaintiffs in general are not required to plead facts in anticipation of a statute of limitations defense.) Instead, they are permitted to plead fraudulent concealment as a matter in avoidance of a statute of limitations special defense, if and when such a defense is interposed by the defendants.
With regard to the plaintiffs' claim relating to the October 1, 2003 grand list, the defendants' argument fails for the additional reason that the parties do not agree upon the relevant date from which the limitations period runs. Specifically, the defendants apparently have assumed the "date of assessment" referenced in General Statutes § 12-121f is October 1, 2003. The plaintiffs, however, have contended that the assessment date is February 1, 2004 for the purposes of the statute, because the mechanics of the process for submitting and perfecting the assessment list would make it impracticable, if not impossible, for the plaintiffs to bring an action before that time. Should the plaintiffs' argument prevail, their action to invalidate the 2003 grand list is timely. While the court expresses no opinion on the merits of the plaintiffs' argument, there clearly is a dispute as to the relevant dates, such that the defendants are precluded from raising the limitations issue by way of a motion to strike.
The defendants fare no better under the second exception set forth in Forbes, which permits a statute of limitations challenge to be made by way of a motion to strike where "a statute gives a right of action which did not exist at common law, and fixes the time within which the right must be enforced, the time fixed is a limitation or condition attached to the right — it is a limitation of the liability itself as created, and not of the remedy alone." Id., 239-40. The defendants contend, without citation to authority, that General Statutes § 12-121f "explicitly fixes the time within which the rights created by statute must be enforced and is a clear limitation of the liability itself as created, and not of the remedy alone." The court disagrees.
General Statutes § 12-121f provides that an assessment list may be invalidated if an assessor (or board of assessment appeals) fails to comply with certain enumerated statutes or discharge certain duties in connection with the generation of an assessment list, "and the plaintiff establishes that the assessor's error or omission will produce a substantial injustice to the taxpayers as a whole." The court must determine whether the cause of action embodied in General Statutes § 12-121f existed at common law or, instead, was created anew by that statute.
An examination of older case law reveals that such an action was indeed available at common law. In Thames Manufacturing Co. v. Lathrop, 7 Conn. 550 (1829), in an opinion authored by Chief Justice Hosmer, the Supreme Court upheld an action sounding in common law trespass de bonis asportatis to invalidate the grand list for the town of Bozrah. The ground for invalidation in that case was that the abstract of the assessment list was not returned to the office of the town clerk by December 1 of the year in question, in violation of Stat. § 444. A similar action apparently is available today pursuant to General Statutes § 12-121f(12), which provides for invalidation of an assessment list if an assessor failed "to . . . return . . . an abstract of an assessment list to his or her town, as required by law . . ."
In another opinion authored by a Chief Justice of historical note, the Supreme Court in Conzelman v. City of Bristol, 122 Conn. 218, 188 A. 218 (1936) confirmed the availability of a common-law action to invalidate a grand list. Writing for the court (and citing to Thames Manufacturing Co. v. Lathrop, supra) Chief Justice Maltbie opined:
It is not always easy to draw the line between those failures in the performance of their full duty by assessors which will invalidate an entire assessment and those which are available only to the individual taxpayer whose property is incorrectly valued. There probably never was a grand list where with reference to certain properties included the assessors did not fail in the strict performance of their duty. To invalidate the entire grand list of a municipality is an act fraught with very serious consequences. A breach of duty by the assessors may be of such a nature as necessarily to affect the entire grand list, such as a failure to obey a mandatory statutory requirement. Thames Mfg. Co. v. Lathrop, 7 Conn. 550; Hartford v. Poindexter, 84 Conn. 121, 130, 79 A. 79. On the other hand, an error which affects only the valuation of the property of a particular taxpayer can be adequately remedied by an appeal by him to the board of relief. In order to justify the invalidation of an entire grand list, errors in the method of valuation of individual properties must be such that the levy of a tax upon the grand list would be likely to produce a substantial injustice to the taxpayers of the community as a whole.
Id., 226-27 (emphasis added).
Intriguingly, the highlighted language matches nearly verbatim the requirement set forth in General Statutes § 12-121f that "the assessor's error or omission will produce a substantial injustice to the taxpayers as a whole." Because an action to invalidate an assessment list plainly was available at common law, the second CT Page 5926 Forbes exception does not pertain, and the statute of limitations argument cannot be raised by way of a motion to strike. Accordingly, the defendants' motion to strike counts 5-9 is denied.
The defendants also moved, to strike counts 2, 4, 6, and 8 on the grounds that the plaintiffs were attempting to bring claims upon the behalf of other Branford taxpayers. At oral argument on the present motion, counsel for the defendants agreed to withdraw this argument based upon the representation of the plaintiffs that their pleadings in those counts were structured to comply with the requirement of General Statutes § 12-121f that the plaintiffs establish that the assessment list will produce substantial injustice to the taxpayers as a whole, and that the plaintiffs did not intend, as pro se parties, to bring claims as representatives of other taxpayers. In light of the rulings herein, inasmuch as the plaintiffs are likely to file an amended complaint, it would be efficacious for them to recombine counts 2, 4, 6, and 8 with counts 1, 3, 5, and 7, as they had previously attempted to (now that this issue is clarified).
II. Federal Constitutional Claims (Counts 14-15 and 20-21)
In counts 14-15, the plaintiffs allege that the defendant Town and Neal violated the plaintiffs' rights under the due process and equal protection clauses of the fourteenth amendment to the U.S. Constitution, respectively. In counts 20 and 21, the plaintiffs make similar allegations with respect to the defendant Town and Milici. All of these claims ostensibly are made under the rubric of the federal civil rights statute, 42 U.S.C. § 1983. The plaintiffs seek, among other things, compensatory and punitive damages, various injunctive relief, and attorneys fees. The defendants have moved to strike each of those claims, arguing that a § 1983 claim will not lie where there is extant a comprehensive statutory scheme for the redress of the tax claims that underlie these constitutional causes of action. The court agrees.
Analysis of this issue must begin with the decision of the Connecticut Supreme Court in Jade Aircraft Sales, Inc. v. Crystal, 236 Conn. 701, 674 A.2d 834 (1996). In that case, a taxpayer challenged the assessment of a use tax against an airplane that had been purchased out-of-state, asserting claims, inter alia, that the assessment violated the taxpayer's rights under the due process clauses of the fifth and fourteenth amendments, as well as its rights under the commerce clause, in violation of 42 U.S.C. § 1983. The court began its discussion by citing to its previous decision in Zizka v. Water Pollution Control Authority, 195 Conn. 682, 490 A.2d 509 (1985), as well as the decision of the United States Supreme Court in National Private Truck Council, Inc. v. Oklahoma Tax Commission, 515 U.S. 582, 115 S.Ct. 2351, 132 L.Ed.2d 509 (1995):
Recently, recognizing that there was conflict among the state courts, the United States Supreme Court granted certiorari in National Private Truck Council, Inc. v. Oklahoma Tax Commission, supra, 515 U.S. at 115 S.Ct. at 2354, to determine whether, in tax cases, state courts have jurisdiction under § 1983 when there is an adequate state remedy. Indeed, the United States Supreme Court referred to Connecticut, by citing to this court's decision in Zizka, as a jurisdiction that holds that "[s]tates need not provide [a] § 1983 remedy in state tax cases" if an adequate remedy is provided for in state law. Id., at n. 3, 115 S.Ct. at 2354 n. 3. With an analysis that paralleled the analysis this court had set forth in Zizka, the United States Supreme Court held that "[w]hen a litigant seeks declaratory or injunctive relief against a state tax pursuant to § 1983 . . . state courts, like their federal counterparts, must refrain from granting federal relief under § 1983 when there is an adequate legal remedy." Id., at 115 S.Ct. at 2357. Accordingly, in the present case, unless the state remedy is inadequate, the trial court was correct in dismissing the action.
Jade Aircraft Sales, Inc. v. Crystal, supra, 236 Conn. 708 (emphasis added).
The court went on to hold that General Statutes § 12-422, which provided the plaintiff with the right to appeal the decision of the commissioner, constituted an adequate remedy such that the plaintiff's § 1983 claim was barred. According to the court, the remedy afforded by § 12-422 was adequate notwithstanding the unavailability of attorneys fees, and the one-month limitation on the appeal period. Id., 709-10.
Jade Aircraft compels the court to dismiss the plaintiffs' § 1983 claims unless the remedies provided by state law are inadequate. An examination of the statutory framework for the assessment of real property reveals that "[t]he process by which the city assesses real estate is authorized and regulated expressly by a pervasive statutory scheme . . . In addition, the procedures by which a taxpayer may challenge those assessments are set forth by a statutory scheme that carefully balances both the procedural and substantive remedies." City of Danbury v. Dana Investment Corp., 249 Conn. 1, 20, 730 A.2d 1128 (1999).
The court concludes that the remedies established by the statutory scheme are adequate. These remedies include the right to appeal the decision of the board of assessment appeals to the Superior Court pursuant to General Statutes § 12-117a; the right to bring a civil action challenging the assessment pursuant to General Statutes § 12-119; and an action to invalidate an assessment list pursuant to General Statutes § 12-121f. Given that the Connecticut Supreme Court has twice held a single, narrowly prescribed avenue of appeal to be an adequate remedy for the purposes of a § 1983 analysis; see Jade Aircraft v. Crystal, supra; Zizka v. Water Pollution Control Authority, supra; the court is compelled to conclude that the remedies afforded by the legislature are adequate in this instance. Accordingly, counts 14, 15, 20, and 21 are dismissed.
The plaintiffs have availed themselves of each of these remedies in the present case.
III. State Constitutional Claims (Counts 12-13 and 18-19)
The plaintiffs in count 12 assert against the Town and Neal violations of Article First, §§ 8 and 10 of the Connecticut Constitution and, in Count 13, violations of Article First, §§ 1 and 20 of the Connecticut Constitution. Counts 18 and 19 make similar allegations against the Town and Milici. As in their federal constitutional claims, the plaintiffs seek a variety of injunctive relief as well as compensatory and punitive damages. The defendants have moved to strike these claims, arguing that the constitutional provisions relied upon do not provide a direct cause of action for damages. The court agrees.
Article First, § 8 of the Connecticut Constitution is Connecticut's due process clause, similar to that contained in the federal constitution. The Connecticut Supreme Court in Kelley Property Development, Inc. v. Lebanon, 226 Conn. 314, 627 A.2d 909 (1993) considered the issue of whether Article First, § 8 provides for a right of action for damages in a case with allegations of constitutional violations similar to those in the present case. The plaintiff in Kelley was a real estate developer that sought approval of a development plan for a certain parcel of its property in the town of Lebanon. After the defendant Lebanon zoning commission denied the plaintiff's application, the plaintiff brought an action claiming that the defendant, inter alia, had violated the plaintiff's rights under Article First, §§ 8 and 10 of the Connecticut constitution and seeking damages. According to the plaintiff, the defendant zoning commission had, among other things, denied approval of his project for political reasons, intentionally denied him a fair hearing, and intentionally failed to follow applicable law.
The Connecticut Supreme Court held that Article First, §§ 8 and 10 did not provide a cause of action for damages under the circumstances of that case: CT Page 5929
as a general matter, we should not construe our state constitution to provide a basis for the recognition of a private damages action for injuries for which the legislature has provided a reasonably adequate statutory remedy. This conclusion accords with the constitutional principle of separation of powers and its requirement for judicial deference to legislative resolution of conflicting considerations of public policy . . . The circumstances of this case provide no compelling justification for departure from this general principle. We note that the legislature, by enacting General Statutes § 8-8, has provided Kelley an avenue for administrative relief from the wrongful and allegedly unconstitutional conduct of the defendants. It is constitutionally significant that judicial review of the administrative decision may be available. See General Statutes § 8-8(o). The existence of this remedy weighs heavily against judicial creation of a state Bivens action. Moreover, even if such administrative relief were deemed to be inadequate, a proposition to which we do not subscribe, Kelley might have pursued other actions to protect his interests.
Kelley Property Development, Inc. v. Lebanon, supra, 226 Conn. 339-41.
In further support of its holding, the court cited three additional factors. First, the court noted that the creation of a damages action under the state constitution could have a deleterious "chilling" effect upon the zeal with which local zoning officials performed their functions, particularly given the fact that local zoning officials are laypersons with little or no technical expertise, and thus "might not be able to accurately predict what conduct would be found to violate the state constitution." Secondly, the court pointed to the potential explosion of litigation and liability that could result from the creation of such a cause of action. Finally, the court noted that to the extent the dispute between the parties was a political one, it was best resolved pursuant to political channels. See id. at 341-42.
The court finds Kelley to be controlling with regard to the plaintiffs' claims under the state constitution. For the reasons set forth supra herein, the legislature has provided the plaintiffs with adequate remedies for the acts and omissions complained of. Moreover, the policy considerations cited by the Kelley court apply with nearly equal force in the context of municipal taxation. Although Kelley dealt with Article First, § 8, the court cannot find, and the plaintiffs have not offered, any reason to treat the plaintiffs' claim for damages under the equal protection clause differently.
The court notes that, unlike the zoning officials involved in Kelley, municipal assessors are required by law to have a certain amount of specialized skill in municipal tax assessment. See, e.g., General Statutes § 12-40a. Nevertheless, for the purposes of the constitutional analysis, the court concludes that the circumstances of the present matter are much closer to Kelley than Binette v. Sabo, 244 Conn. 23, 710 A.2d 688 (1998), where the Supreme Court distinguished Kelley in creating a private cause of action against law enforcement officials under Article First, §§ 7 and 9 of the Connecticut constitution: "[T]he critical factors that persuaded us to reject a state Bivens-type remedy in Kelley Property Development, Inc., are absent here. First, for the reasons we previously have articulated, recognition of a state Bivens-type remedy in the circumstances of this case reasonably cannot be characterized as an unwarranted intrusion into the policy-making authority of the legislature. Second, in Kelley Property Development, Inc. v. Lebanon, supra, 226 Conn. at 342, 627 A.2d 909, we were reluctant to impose constitutional tort liability on the defendant members of the town planning and zoning commission because, as private citizens, "they might not be able to predict accurately what conduct would be found to violate the state constitution." Moreover, we expressed the concern that creation of a Bivens-type remedy in the circumstances of that case could "have a chilling effect on the zeal with which [the planning and zoning commission members undertook] their responsibilities." In contrast, police officers are public employees who are expected — indeed, required — to comport themselves in accordance with constitutional standards. Third, we observed that to the extent that the dispute in Kelley Property Development, Inc., was the product of political differences, it was "preferable that such a dispute . . . be resolved not by litigation but within designated political channels: zoning commissions, town boards and other local political institutions " Id., 46. In the present case, these same factors militate against the creation of a private cause of action against the municipal defendants.
In addition to their due process and equal protection claims, the plaintiffs have made claims under Article First §§ 1 (counts 12 and 18) and 10 (counts 13 and 19) of the Connecticut constitution. The plaintiffs have pled no facts consistent with a cause of action under either of these sections. Article First, § 1 generally prohibits legislative acts that are intended solely for the benefit or advantage of an individual. See Chotkowski v. State, 240 Conn. 246, 257, 690 A.2d 368 (1997). The plaintiffs have made no such claim in this case. The plaintiffs also have pled no facts in support of their claim of a violation of Article First, § 10, which colloquially is referred to as the "open courts" provision of the Connecticut constitution and has been construed as prohibiting the legislature from abolishing a remedy in existence before 1818 unless an adequate alternative is provided. See Binette v. Sabo, supra, 244 Conn. 30.
Accordingly, the court grants the defendants' motion to strike counts 12, 13, 18, and 19 of the operative complaint.
The court notes that the plaintiffs are not necessarily left without a remedy for the alleged violations of due process and equal protection provisions of the federal and state constitutions. Such allegations may be relevant to whether the assessment of the plaintiffs' property was illegal for purposes of the plaintiffs' claims under General Statutes § 12-119, or whether the plaintiffs were aggrieved by the doings of the board of assessment appeals pursuant to General Statutes § 12-117a.
IV. Claims under the Branford code (Counts 10 and 16)
In counts 10 (against the town and Neal) and 16 (against the town and Milici), the plaintiffs assert claims based upon alleged violations of the Branford Code. Specifically, the plaintiffs allege that the defendants violated three provisions of chapter 38 of the Branford Code, each of which establish certain ethical standards, to wit; Branford Code § 38-3A, which prohibits a town officer or his immediate family from accepting gifts, etc. that might tend to influence the performance of his or her duties; Branford Code § 38-3B, which prohibits a town official from, among other things, holding a financial interest or engaging in a transaction or professional activity that could conflict with the discharge of the official's duties; and Branford Code § 38-4A, which requires town officers, and their immediate families, to disclose transactions with the town totaling $500 or more at the end of each fiscal year. The plaintiffs claim that the defendant Neal violated these provisions by, inter alia, misrepresenting her qualifications as an assessor and permitting Milici to simultaneously serve as an assessor and as a member of the Branford board of assessment appeals.
The Defendants have moved to strike these counts, asserting that these provisions do not provide the plaintiffs with a private cause of action for their violation. The court agrees.
This issue apparently is one of first impression, at least within the State of Connecticut. The parties have not cited, and the court has not found, any Connecticut case addressing the issue of an implied private cause of action under a town code. The court, therefore, turns to the general guidelines pertaining to implied causes of action, as explicated by the Connecticut Supreme Court: CT Page 5931
This court previously has recognized that, [i]n determining whether a private remedy is implicit in a statute not expressly providing one, several factors are relevant. First, is the plaintiff one of the class for whose . . . benefit the statute was enacted . . .? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? . . . Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff?
Pane v. City of Danbury, 267 Conn. 669, 679, 841 A.2d 684 (2004).
These factors, to the extent that they are applicable, counsel against the recognition of an implied cause of action under the Branford Code provisions at issue here. First, it appears that these code provisions are aspirational ethical provisions, intended to benefit the town and its citizens as a whole by protecting the integrity of political office and civil service. The court is unable to discern from these provisions any intention to benefit a particular class of plaintiff, as opposed to the general public as a whole.
Under the Pane analysis, the court next turns to the issue of legislative intent. The language of these provisions, and the structure of the Branford code, reveals no discernable legislative intent to either create or deny a private right of action for their violation. However, the inquiry does not end there, for municipalities are creatures of statute, and are vested only with such powers and authority as are granted by the legislature. See AvalonBay Communities, Inc. v. Sewer Commission, 270 Conn. 409, 425, 853 A.2d 497 (2004). As a general matter, municipalities do not have the authority to create private rights of action or new civil liability. See McQuillan, Municipal Corporations § 22.01 (3d Ed. 1998). The court therefore must look to the General Statutes to determine whether the legislature has expressed any intention to provide municipalities with authority to create a private cause of action for ethics violations.
As the plaintiffs point out, General Statutes § 7-479 specifically authorizes municipalities to enact ordinances establishing ethical standards. That statute provides in relevant part:
Any municipality, in addition to such powers as it has under the provisions of the general statutes or any special act, may, by ordinance or regulation, prohibit any member or employee of any municipal board or agency, or any official, officer or employee of such municipality from (1) being financially interested, or having any personal beneficial interest, either directly or indirectly, in any contract or purchase order for any supplies, materials, equipment or contractual services furnished to or used by any such municipality, board or agency and (2) accepting or receiving, directly or indirectly, from any person, firm or corporation to which any contract or purchase order may be awarded by such municipality, by rebate, gifts or otherwise, any money, or anything of value whatsoever, or any promise, obligation or contract for future reward or compensation. Such municipalities may prescribe penalties for the violation of any ordinance or regulation enacted pursuant to this section, including the voidance of any municipal purchase, contract or ruling adopted in contravention thereof.
Section 7-479 not only enables municipalities to enact ethics rules, it permits municipalities to prescribe penalties for the violation of those rules. Conspicuous by its absence is any provision enabling municipalities to create a private right of action for the violation of ethics rules. The court concludes that the absence of such a provision is persuasive evidence that the legislature did not intend to grant such authority, particularly in light of the legislature's explicit consideration of, and provision for, remedies for the violation of ethics rules, in the form of penalties. Had the legislature intended to enable the creation of a private cause of action, it could have done so.
Finally, the "legislative scheme" created by the code and the enabling statute is, as described above, apparently intended to protect the integrity of public office and civil service. While a private right of action is not necessarily inconsistent with the notion of ethical ideals, the court is not persuaded that such a cause of action furthers the goals of the Branford Code or the enabling statute on the present facts. The alleged code violations are, at best, tangentially related to the crux of the plaintiffs' claims, namely, the excessive valuation of their real property. Moreover, as discussed above, the legislature explicitly dealt with the issue of remedies for violation of ethics rules, and failed to include a provision enabling municipalities to create a private right of action. It would therefore be incongruous for this court to conclude that a private cause of action would further a scheme that has been carefully considered by the legislature.
V. Claims under certain Connecticut General Statutes pertaining to the assessment process (Counts 11 and 17)
In Counts 11 (against the town and Neal) and 17 (against the town and Milici), the plaintiffs assert causes of action for the violation of various General Statutes relating to the assessment of property taxes. The plaintiffs claim that the defendants have violated, among others, General Statutes § 12-40a (pertaining to the certification of assessment officials) § 12-55(a) (pertaining to certain infirmities in the assessment lists prepared and submitted by the defendant Neal) and General Statutes § 12-63 (establishing rules for the valuation of real property). Again, the plaintiffs claim compensatory and punitive damages and various injunctive relief. The defendants have moved to strike these counts, arguing that the statutes cited by the plaintiffs do not provide for a private cause of action. The court rejects this argument.
Although the defendants are correct in asserting that the statutes cited by the plaintiffs do not provide for a private right of action, General Statutes § 12-119 explicitly creates a right of action for violation of the statutes for determining the valuation of real property. As the Connecticut Supreme Court has noted, General Statutes § 12-119 encompasses two types of claims:
`The first category in the statute embraces situations where a tax has been laid on property not taxable in the municipality where it is situated . . .' The second category consists of claims that assessments are `(a) manifestly excessive and (b) . . . could not have been arrived at except by disregarding the provisions of the statutes for determining the valuation of the property.' . . . Cases in this category must contain allegations beyond the mere claim that the assessor overvalued the property. `[The] plaintiff . . . must satisfy the trier that [a] far more exacting test' has been met: either `there was misfeasance or nonfeasance by the taxing authorities, or the assessment was arbitrary or so excessive or discriminatory as in itself to show a disregard of duty on their part.' Only if the plaintiff is able to meet this exacting test by establishing that the action of the assessors would result in illegality can the plaintiff prevail in an action under § 12-119. The focus of 12-119 is whether the assessment is `illegal.'
Wilson v. Kelley, 224 Conn. 110, 119, 617 A.2d 433 (1992).
The court concludes that, although the plaintiffs have not expressly cited General Statutes § 12-119 in Counts 11 and 17, the allegations of those counts sufficiently set forth the substance of a cause of action under the second category of actions permitted by that statute. The plaintiffs closely track the language of § 12-119 in these counts, alleging that their property was "grossly overassessed" as a result of the "manifest and flagrant disregard" of the referenced provisions of the general statutes. Moreover, the plaintiffs do cite to § 12-119 in their prayers for relief to counts 11 and 17. Under these circumstances, it cannot reasonably be argued that the plaintiffs' failure to explicitly cite § 12-119 can cause any surprise or prejudice to the defendants.
Accordingly, the court treats Counts 11 and 17 as stating causes of action pursuant to General Statutes § 12-119. See Reardon v. Stonington, 2004 WL 2668292 (Oct. 28, 2004) (Hurley, J.T.R.) (38 Conn. L. Rptr.) (Construing plaintiff's claims for violations of General Statutes §§ 12-62 and 12-63 as being made pursuant to § 12-119 where plaintiffs adequately pled elements of that statute); cf. Wilson v. Kelley, supra, 224 Conn. 120-21 (Construing plaintiffs' action seeking declaratory judgment action that municipal defendants violated General Statutes § 12-62 as one made under General Statutes § 12-119, because plaintiffs would not have standing to maintain action based upon violation of § 12-62 without reference to § 12-119). The defendants' motion to strike counts 11 and 17 is denied.
VI. Claims under General Statutes § 12-170 (Counts 22-27)
In Counts 22-27, the plaintiffs seek to recover the penalty for official misconduct embodied in General Statutes § 12-170. That statute provides:
Each assessor, member of the board of assessment appeals, selectman, committee or collector, who does any unlawful act or omits to do any necessary act connected with the levy, assessment or collection of any tax, shall forfeit fifty dollars to the person aggrieved thereby, to be collected by such person in an action on this statute; and each collector who charges or receives any illegal fees shall, in addition to said sum of fifty dollars, also forfeit double the amount of such illegal fees to the person aggrieved, to be collected as aforesaid.
In counts 22-27 the plaintiffs have mirrored their substantive allegations, seeking the penalty provided by General Statutes § 12-170 for each alleged violation of the federal and state constitutions, General Statutes and Branford code as described hereinabove. As the court has stricken the plaintiffs' claims under the federal and state constitutions, as well as their claims under the Branford code, those violations cannot provide a basis for recovery under General Statutes § 12-170. On the other hand, the plaintiffs' claims for violation of certain Connecticut General Statutes (counts 11 and 17) have survived the defendants' motion to strike, and therefore, are viable as a basis for recovery pursuant to § 12-170. Accordingly, the court grants the defendants' motion to strike counts 22 (regarding violations of the Branford), 24-25 (regarding violations of the Connecticut constitution) and 26-27 (regarding violation of the federal constitution). The defendants' motion to strike count 23 (regarding violations of various Connecticut General Statutes pertaining to tax assessment) is denied.
VII. Claims against the defendants Neal and Milici in their individual capacity
The defendants have moved to strike the plaintiffs' claims pursuant to General Statutes §§ 12-117 and 12-119 against Neal and Milici in their individual capacity, arguing that those statutes do not provide for a cause of action against a municipal official in his or her individual capacity. The court agrees.
The primary purpose of both of those statutes is to provide relief to a taxpayer from an excessive assessment by reducing the assessment. There is nothing in either statute to indicate that the legislature intended to create an action for damages against town officials. Moreover, the legislature explicitly addressed the issue of the personal liability of tax officials in General Statutes § 12-170, the text of which is set forth above. Accordingly, the court strikes counts 11 and 17 to the extent they allege a cause of action against Neal and Milici in their individual capacities.
VIII. Motion to strike prayers for relief
Where counts are stricken, so then are their respective prayers for relief. The defendants have also moved to strike various prayers for relief of the remaining, surviving counts. The court first addresses counts 1-9, which are made pursuant to General Statutes § 12-121f to invalidate the town's assessment list for the years 2002, 2003, and 2004. In individual prayers for relief appended to each count, the plaintiffs seek a variety of relief in addition to the remedy of invalidation, including monetary damages and very specific injunctive relief. The court concludes that the only remedy permitted by General Statutes § 12-121f is invalidation of a particular year's assessment list. Accordingly, the court strikes the plaintiffs' prayers for relief for counts 1-9, except to the extent that the plaintiffs seek a judgment invalidating the assessment list for the year addressed by each count.
The court also must address the prayers for relief to counts 11 and 17, which, for the reasons set forth hereinabove, state a claim for relief pursuant to General Statutes § 12-119 for violation of various General Statutes pertaining to the assessment process. The plaintiffs' prayers for relief under these counts again seek compensatory, punitive, and exemplary damages, and various injunctive relief. General Statutes § 12-119, as discussed above, is intended to provide taxpayers with a remedy for an excessive valuation of real property. The plaintiffs' prayer for relief contains many detailed and specific requests for injunctive relief that bear, at best, an attenuated relationship to the assessed value of their property. The court therefore strikes all of the plaintiffs' prayer for relief for Count 11, save paragraph 25 (seeking "any and all appropriate relief pursuant to General Statutes § 12-119") and all of the plaintiffs' prayer for relief for count 17, except for paragraph 27 (also seeking "any and all appropriate relief pursuant to General Statutes § 12-119.") The court expresses no opinion at this time as to whether such appropriate relief includes punitive damages or attorneys fees. The court will await the receipt of evidence before determining the availability of punitive damages and attorneys fees under General Statutes § 12-119.
IX. Summary of rulings
The court grants the motion to strike counts 10, 12, 13, 16, 18, 19, 22, 24, 25, 26 and 27. The court dismisses counts 14, 15, 20 and 21. To the extent that claims are made personally against Neal and Milici, the court strikes counts 11 and 17; the court denies the balance of the motion to strike counts 11 and 17. The court denies the motion to strike counts 1 through 9 and 23.
Pursuant to the representations made at oral argument, the plaintiff shall file an amended complaint in which counts 1 through 4 are combined into one count under General Statutes § 12-121f (pertaining to the October 1, 2004 assessment list) and counts 5 through 8 are combined into one count under General Statutes § 12-121f (pertaining to the October 1, 2003 assessment list). The court notes that the allegations of scienter (recklessness, negligence, malice, etc.) contained in those counts are not necessary to the plaintiffs' causes of action under General Statutes § 12-121f and thus should not be pled.
Similarly, the plaintiff's claims under General Statutes § 12-119 (counts 11, 17, 30, and 31) should be combined in a manner such that there is a single count for each tax year, without any further breakdown as to the scienter of the defendants.