Opinion
No. CV 03 0520584 S
December 15, 2004
MEMORANDUM OF DECISION
This is the second memorandum of decision issued in the above-entitled administrative appeal. The first memorandum, filed on September 8, 2004, dismissed the appeal because, I held, the plaintiffs lacked standing. I indicated that I would hear reargument on request, however, because I was not sure that all parties had had the opportunity fully to present their positions. I heard oral argument again on October 8, 2004, and received additional written material.
The facts are stated in the first memorandum and need not be repeated here. Suffice it to say here that the Wallingford town council voted to adjourn into executive session for the purpose of discussing litigation. The two plaintiffs voted against going into executive session, because they did not think that the action was proper pursuant to the Freedom of Information Act, and voluntarily absented themselves from the portion of the executive session devoted to that discussion. They then complained to the Freedom of Information Commission ("commission"). The commission held in favor of the town on the merits of the dispute: because the town counsel discussed strategy and positions regarding potential or pending litigation, the executive session was justified. The plaintiffs appealed to this court. While preparing for the argument in this court, the commission changed its mind and supported on the merits the position of the plaintiffs.
I have reviewed the issue of standing and agree with the parties that there is no precise precedent, at least in this jurisdiction and perhaps anywhere. Perhaps this void obliquely supports the position of the town. The issue is whether a member of an agency who votes against executive session, and then voluntarily absents himself from the executive proceedings as a matter of principle, has standing to appeal to the judicial system.
He apparently is able to present a complaint to the commission. In the first memorandum, I had cited § 1-206(b)(1) for the proposition that anyone who had been denied the right to attend any meeting of a public agency had the right to appeal to the commission. In the second argument, counsel for the commission informed me of § 1-205(d) and the commission's position that it has the statutory mandate to consider all complaints made to it, regardless of judicial concepts of standing. See also Town of Bloomfield v. Freedom of Information Commission, et al., No. CV81-265996 (J.D. of Hartford, 1983) (Klaczak, J.). Ably and responsibly, counsel for the commission suggested in oral argument that "standing" for the purpose of complaining to the commission may be a different concept from "standing" to invoke the judicial process.
The general tests regarding standing to invoke the judicial process have been often repeated and, as a general concept, are not subject to dispute.
"It is a basic principle of law that a plaintiff must have standing for the court to have jurisdiction. Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he has . . . some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy. Ardmare Construction Co. v. Freedman, 191 Conn. 497, 501, 467 A.2d 647 (1983) . . ." (Internal quotation marks omitted.) Unisys Corporation v. Department of Labor, 220 Conn. 689, 693, 600 A.2d 1019 (1991). "`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 represented. See, e.g., Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962); Stern v. Stern, 165 Conn. 190, 192, 332 A.2d 78 (1973). 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. Such a "personal stake in the outcome of the controversy"; Shaskan v. Waltham Industries Corporation, 168 Conn. 43, 49, 357 A.2d 472 (1975); Baker v. Carr, supra, 204; provides the requisite assurance of "concrete adverseness" and diligent advocacy.'" Board of Pardons v. Freedom of Information Commission, 210 Conn. 646, 648-49, 556 A.2d 1020 (1989), quoting Maloney v. Pac, 183 Conn. 313, 320-21, 439 A.2d 349 (1981).
Rose v. Freedom of Information Commission, 221 Conn. 217, 223-24 (1992).
"The fundamental test for determining aggrievement encompasses a well-settled two-fold determination: first, the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party . . . must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the decision. Mystic Marinelife Aquarium, Inc. v. Gill, 175 Conn. 483, 493, 400 A.2d 726 (1978); Nader v. Altermatt, [ 166 Conn. 43, 51, 347 A.2d 89 (1974)]." (Internal quotation marks omitted.) Bakelaar v. West Haven, 193 Conn. 59, 65, 475 A.2d 283 (1984). "Aggrievement is established if `there is some possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected.'" Hall v. Planning Commission, 181 Conn. 442, 445, 435 A.2d 975 (1980); O'Leary v. McGuinness, 140 Conn. 80, 83, 98 A.2d 660 (1953).
Rose v. Freedom of Information Commission, supra, 230 (1992).
"As long as there is some direct injury for which the plaintiff seeks redress, the injury that is alleged need not be great . . . [and] need not be primarily economic." Maloney v. Pac, 183 Conn. 313, 320-21, 439 A.2d 349 (1981); see University of Connecticut Chapter, AAUP v. Governor, 200 Conn. 386, 389, 512 A.2d 152 (1986).
In appeals pursuant to 1-21i(d), we have translated these general principles into a twofold test for aggrievement that requires a showing of: (1) a specific personal and legal interest in the subject matter of the FOIC decision; and (2) a special and injurious effect on this specific interest. Zoning Board of Appeals v. Freedom of Information Commission, 198 Conn. 498, 502, 503 . . .
Board of Pardons v. FOIC, 210 Conn. 646, 649 (1989).
The issue, then, is whether the plaintiffs have a specific direct interest in the controversy, which interest has been adversely affected, with the understanding that the interest need not be great and there needs to be only a possibility that the interest has been or will be adversely affected. Here, the plaintiffs' interest which is primarily claimed to have been adversely affected is the desire to participate fully in lawful proceedings. Whether such an interest is sufficient to confer standing to an individual commission member is a close question.
There would appear to be no threat of civil or criminal proceedings. As aptly stated by counsel for the commission in argument, it is not reasonable to expect that the commission would bring some sort of enforcement action against someone who voted against executive session, should the executive session have been found to have been unlawful. Compare, e.g., Board of Pardons v. FOIC, 210 Conn. 646, 650 (1989) (for standing, need for "genuine likelihood" of enforcement action). The issue might be different if, for example, a prior order of the commission compelled open sessions in such a situation.
In Rose v. FOIC, supra, educators whose actions were the subject of agency action were held to have standing to appeal, regardless of whether the commission conferred "party" status upon them. Rather, tests of classic aggrievement were appropriate. The case perhaps most favorable to the plaintiffs' position is Board of Pardons v. Freedom of Information Commission, 210 Conn. 646 (1989). There, the Board of Pardons was held to have standing to appeal from the commission's holding that certain deliberations were to be conducted in public, partly because of the board's declared belief that executive sessions were necessary to the integrity of the pardoning process. Id., 650. Although the interest asserted was in some senses the opposite of that asserted in this case, in that the plaintiffs here assert an intangible interest in openness rather than in privacy, the similarity lies in a shared belief in the proper conduct of one's agency's business. The remaining cases advanced by the plaintiffs are not especially helpful to the resolution of this matter, largely because the interests asserted in those cases are more concrete and more directly affected by commission action. State Library v. FOIC, 240 Conn. 824 (1997), states that where there is "some possibility" that a party's contractual rights may have been abridged by the commission's actions, and where another party's interest in privacy may be infringed by disclosure, each has standing to appeal. Cummock v. Gore, 180 F.3d 282 (D.C. Cir. 1999), is a most interesting case but not especially useful here. It held, essentially, that an advisory commission dissident member had standing to compel the disclosure of documents used by the majority of the commission, and that she had greater interest in those documents than the general public. Unlike the plaintiffs in this case, however, Ms. Cummock actually was denied access to records: if the plaintiffs in this case had been denied access to the executive session because of their votes against the executive session, then Cummock would be similar. The other cases, including Bryant v. Weiss, 983 S.W.2d 902 (Ark. 1998), and Fowler v. Beasley, 472 S.E.2d 630 (S.C. 1006), are inapposite.
It may be significant that in cases such as State Library, there is no mention of any argument that simply losing at the commission level creates standing as "aggrieved" by commission action. There still must be an underlying adversely affected direct personal interest.
There remains, of course, Munhall v. Inland Wetlands Commission, 221 Conn. 46 (1992). In the second oral argument, it was suggested, with some cogency, that the statements in Munhall to the effect that members of the agency have no greater legally protected interest in the decisions of the agency than the general public involve substantive votes of the agency rather than the processes of the agency. It is the process, not the result, which was noted to contribute to standing in Board of Pardons. But the point remains that Munhall, as noted in my first decision, rather unequivocally holds that a member's desire that the agency operate lawfully is not in itself sufficient to confer standing.
On balance, though the question is close indeed, I adhere to the position of the first memorandum to the effect that the plaintiffs do not have standing in the narrow circumstances of this case. No action of the commission could possibly have any affect on the plaintiffs' ability to participate in the sessions, be they open or "executive," because they had the ability to be present regardless of how the commission may have ruled. The action is, then, entirely academic as to these plaintiffs. I find no direct personal interest which was denied by the vote of the town council to hold an executive session. Unlike the persons involved in every other case where standing was found, there is no reasonable possibility that any legally recognizable right of the plaintiffs was adversely affected by the agency's vote. They were not denied access. They do not represent a group that was denied access. The integrity of the process was not arguably affected as in Board of Pardons.
It is possible to have standing for the purpose of complaining to the FOIC and still not have standing to invoke the judicial process. I believe that this action was, in the words of Rose, brought to vindicate nonjusticiable interests. The appeal is dismissed.
Although I do not address the merits, it is interesting to examine the commission's approach to the merits, both before and after the change of heart. The commission did not find that the letter from Bristol-Myers constituted a pending claim, as a "written notice . . . stating a demand for legal relief . . ." thus satisfying § 1-200(8) of the General Statutes. Rather, it relied on the "pending litigation" of § 1-200(9)(C), that the agency was considering action to implement legal relief or a legal right. ¶ 16 of Commission decision. Indeed, it may well have been considering implementing legal relief for Bristol-Myers.
The commission and the plaintiffs advocate the necessity of bright lines in applying the definitions of § 1-200(9). I would note that our Supreme Court has apparently deliberately not applied such bright lines. In Board of Education of Ridgefield v. FOIC, 217 Conn. 153 (1999), the court held that a lawyer's letter containing a threat of litigation constituted a "pending claim"; see § 1-200(8). In Furhman v. Freedom of Information Commission, 243 Conn. 427, 433-34 (1997), the court considered a situation where a town council discussed in executive session ways to deal with a permit sought by a waste management business, and one issue was whether the executive session was properly convened pursuant to § 1-200(9)(C). The court stated, at 433-34:
Subdivision (3), however, refers to "consideration of action to enforce or implement legal relief or a legal right." Absent from that subdivision are the terms "legal action" and "an action." Words of a statute "shall be construed according to the commonly approved usage of the language . . ." General Statutes § 1-1(a). Such a reading of the statute yields the interpretation that any action, not restricted to legal action, to implement legal relief or enforce a legal right concerns "pending litigation" under the exception.
But see Ansonia Library Board v. FOIC, 42 Conn.Sup. 84, 4 Conn. L. Rptr. 148 (1991), in which Judge Fuller held that litigation was not pending where an appeal period was pending but the adversary in question had not yet appealed; the mere possibility of an appeal did not enable the board to meet in executive session.
A motion to dismiss was brought as a preliminary motion in this case. Judge Levine denied the motion "without prejudice."
In response to the first motion to dismiss, the town suggested that because the commission's decision favored the town, there could be no sanctions. I do not believe that the outcome of the commission's proceedings necessarily determines standing.
Beach, J.