Opinion
No. X08 CV03 0201280 S
November 28, 2005
MEMORANDUM OF DECISION RE MOTION TO REARGUE (135.00)
On October 18, 2005 this court granted the plaintiff's (Commission) motion for summary judgment and denied the defendants' (Halls) motion for summary judgment. The Halls have now filed a timely motion to reargue directed at the court's stated understanding that its decision could and should be made as a matter of statutory interpretation without requiring analysis of First Amendment or freedom of expression issues arising under the United States or Connecticut Constitution, and that the parties were in agreement with this approach. The Halls filed an amended answer and special defense on the day the summary judgment motions were argued, and the third special defense therein alleged that the Commission's claim of jurisdiction was barred because of the protections afforded the Halls by the First Amendment to the United States constitution and Article I, Sections 4 and 5 of the Connecticut Constitution. The Halls contend that this case cannot be disposed of without an adjudication of their constitutional arguments, and that further proceedings on the trial court level are required. This court grants the motion to reargue, and having considered the parties' positions, and for the reasons briefly stated below, the Halls' requested relief is denied.
The Halls are seeking a second bite of the apple, a bite which they previously expressly disclaimed the opportunity to take. In accordance with the court's scheduling order, both the Commission and the Halls filed dispositive motions for summary judgment in early April 2005, and both motions were fully briefed by the middle of May. Both motions focused on the issue of whether the scope and language of Connecticut's historic district statutes required the Halls' to apply for a certificate of appropriateness from the Commission in connection with the placement of a large sculpture on the Halls' front lawn. While the Commission's initial moving papers discussed First Amendment issues to a limited extent, in response the Halls specifically stated "[a] First Amendment analysis is unnecessary" and further that they were presenting no First Amendment argument. In a footnote to that memorandum the Halls stated:
The Halls strongly believe that Plaintiff's effort to extend the statute to sculpture does trigger important First Amendment rights. However, they believe that the jurisdictional argument presented [by them] is dispositive without an exegesis of the First Amendment.
The Halls' own motion for summary judgment made no reference to constitutional issues.
To be fair, the colloquy between counsel and the court on May 31, 2005, the day of oral argument on the two summary judgment motions is somewhat unclear. As noted, on that day the Halls sought to add the special defense described above, and the court concludes that absent objection from the Commission, the pleadings now contain that defense. Counsel for the Halls can be understood to have noted on two occasions the position that if the Commission's motion was successful the Halls' First Amendment defense would remain. Transcript, 3, 5. At the same time however, Halls' counsel repeated that the motions could and should be decided on non-constitutional grounds, and indeed agreed with the court when it was posited that this case would be decided by a determination of one or more of the pending motions for summary judgment rather than by trial. Id., 8-9.
There can be no question that the Commission's motion sought to dispose of the case in its entirety and contained all its arguments to that end. Whereas the Halls apparently chose the option not to make all the arguments in support of their motion, there was no excuse for the Halls to withhold any arguments which might defeat the Commission's motion, and the judgment sought by the Commission. Further, the mere fact that the Halls chose not to make their constitutional argument cannot justify their after-the-fact claim that this case should be decided on a piecemeal basis. In short, the court concludes that by passing on the opportunity to make their constitutional argument to the trial court, the Halls waived those arguments and failed to establish the elements of their third special defense.
This is not to say that should the Commission act adversely to the Halls at some future date, they may not raise their constitutional arguments at that time.
The relief sought should also be denied because the constitutional question is not ripe. The Connecticut Supreme Court, in discussing the necessity that a claim be justiciable, has recently defined the ripeness requirement as being
confident that the court is not faced with a hypothetical injury or a claim dependent upon some event that has not and, in point of fact, may never occur.
Esposito v. Specyalski, 268 Conn. 336, 350 (2004). The rationale for such a requirement is
to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements.
Office of the Governor v. Select Committee of Inquiry, 271 Conn. 540, 570 (2004) [quoting Milford Power Co., LLC v. Alstom Power, Inc., 263 Conn. 616, 626 (2003).] The requirements of justiciability are usually met when a plaintiff makes a colorable claim that he has suffered or is likely to suffer, harm. George v. Watertown, 85 Conn.App. 606, 613 (2004) [(citing Gay Lesbian Law Students Ass'n v. Board of Trustees, 236 Conn. 453, 463-64 (1996)].
In this case, there is no justiciable or ripe controversy between the Commission and the Halls respecting First Amendment or freedom of expression issues. The Commission has not ruled on whether the Halls should receive a certificate of appropriateness for the sculpture; indeed it has not yet even had the opportunity to consider the matter. While certain case law supports a finding of ripeness prior to a plaintiff making an application to an administrative body these cases are premised on facts showing the occurrence of injury or harm to be likely. There are no such facts in this case. As far as the record shows, the Commission has not ruled adversely on similar applications, nor has it established any policies or guidelines which would make an adverse decision on the Halls' sculpture application likely. The court can discern no colorable claim of harm or likely harm. The only position the Commission has taken relating to the Halls — that it has jurisdiction over the sculpture — has not harmed the Halls, except for the de minimis inconvenience of having to file an application. Indeed, the lack of harm is evidenced by the fact that the Halls have managed to enjoy and display the sculpture which has been firmly ensconced in their front yard since the summer of 2004.