Jacewicz v. DeFilippo

Full title: SLAWOMIR JACEWICZ v. GARY J. DEFILIPPO, COMMISSIONER ET AL

Court: Connecticut Superior Court Judicial District of New Britain at New Britain

Date published: Feb 7, 2006

2006 Ct. Sup. 2737 (Conn. Super. Ct. 2006)

40 CLR 717

Opinion

No. CV 04 4001582

February 7, 2006

MEMORANDUM OF DECISION ON MOTION TO DISMISS

GEORGE LEVINE, JUDGE.

I. INTRODUCTION

The captioned matter is a complaint for declaratory judgment¹ concerning the manner in which the department of motor vehicles ("department") implements suspensions of operators' licenses under Connecticut General Statutes §§ 14-227a and 14-227b (all further section references are to the General Statutes, unless otherwise specified). The department has moved to dismiss the complaint on the ground that it is now moot, thereby depriving the court of subject matter jurisdiction.

1 The complaint for declaratory judgment is pursuant to § 4-175 and Connecticut Practice Book § 17-54. General Statutes § 4-175 provides, in relevant part: "(a) If a provision of the general statutes, a regulation or a final decision, or its threatened application, interferes with or impairs, or threatens to interfere with or impair, the legal rights or privileges of the plaintiff and if an agency . . . (2) decides not to issue a declaratory ruling under subdivision (4) or (5) of subsection (e) of said section 4-176 . . . the petitioner may seek in the Superior Court a declaratory judgment as to the validity of the regulation in question or the applicability of the provision of the general statutes, the regulation or the final decision in question to specified circumstances. The agency shall be made a party to the action."
Practice Book § 17-54 provides as follows: "The judicial authority will, in cases not herein excepted, render declaratory judgments as to the existence or nonexistence (1) of any right, power, privilege or immunity; or (2) any fact upon which the existence or nonexistence of such right, power, privilege or immunity does or may depend, whether such right, power, privilege or immunity now exists or will arise in the future."

II. FACTS

For purposes of the motion to dismiss, the allegations of the complaint are taken to be true. Those allegations, and the facts admitted by the parties in their briefs and arguments, are as follows: The plaintiff was arrested for operating a motor vehicle under the influence of alcohol or drugs, in violation of § 14-227a; after an administrative hearing, the department, by its hearing officer, found that, when requested, the plaintiff had failed to submit to a blood alcohol test; the department ordered the plaintiff's operator's license suspended for a period of six months, pursuant to § 14-227b(i); after the plaintiff's six-month suspension had been fully served, the plaintiff pled guilty to, and in connection with the same episode was convicted of, driving under the influence of alcohol or drugs; as a result of his conviction, the department ordered the plaintiff's operator's license suspended for an additional period of twelve months, in accordance with § 14-227a(g); and, the plaintiff's attorney asked the department to reduce the plaintiff's twelve-month suspension to six months, which the department refused to do.

In effect, the plaintiff sought a "credit" against the twelve-month suspension for the six-month suspension already served. The department has conceded that its practice is to allow separate license suspensions for the same episode to run concurrently if the first suspension is still being served when the second suspension begins (Department's memorandum in support of motion to dismiss, n. 1, p. 2).

Pursuant to § 4-176² et seq. and Connecticut Agency Regulations § 14-137-21,³ the plaintiff then petitioned the department for a declaratory ruling as to the constitutionality of the practice of requiring separate suspension periods under §§ 14-227a and 14-227b to run consecutively when the second suspension is imposed after the first has been fully served. Citing a lack of legal authority to support the plaintiff's petition, the department declined to issue a declaratory ruling.

2 Section 4-176(a) provides, in relevant part: "Any person may petition an agency . . . for a declaratory ruling as to the validity of any regulation, or the applicability to specified circumstances of a provision of the general statutes, a regulation, or a final decision on a matter within the jurisdiction of the agency."

3 Connecticut Agency Regulations § 14-137-21 provides, in relevant part: "The Department of Motor Vehicles will accept a petition for declaratory ruling as to the applicability of any statute or regulation administered by the Department of Motor Vehicles . . ."

III. POSITIONS OF THE PARTIES

The department argues that the court lacks subject matter jurisdiction to decide this matter because the complaint is not justiciable. The department contends that, because the plaintiff has fully served both suspensions, the court cannot afford him any practical relief, so that his complaint is moot. The department further maintains that the complaint fails to satisfy the requirements of the "capable of repetition, yet evading review" exception to the mootness doctrine.

In response, the plaintiff asserts that his complaint is justiciable because the court can provide him practical relief by vindicating his rights. Alternatively, if the court deems his complaint moot, the plaintiff argues that the matter is nonetheless justiciable, because his complaint satisfies the elements of the "capable of repetition, yet evading review" exception.

Both parties agree, and the court so holds, that the common-law principles of justiciability, including the "capable of repetition, yet evading review" exception to the mootness doctrine, apply to complaints under § 4-175.

IV. DISCUSSION A. Justiciability and mootness

It is well established that "before a claimed controversy is entitled to a resolution on the merits it must be justiciable." State v. Nardini, 187 Conn. 109, 111, 445 A.2d 304 (1982). The Nardini court held that the following four elements must exist for a claim to be justiciable: "(1) that there be an actual controversy between or among the parties . . . (2) that the interests of the parties be adverse . . . (3) that the matter in controversy be capable of being adjudicated by judicial power . . . and (4) that the determination of the controversy will result in practical relief to the complainant." Id. at 111-12 (internal citations omitted).

If a controversy is moot, it is not justiciable (unless it meets the requirements of the "capable of repetition, yet evading review" doctrine). Id. Because justiciability implicates the court's subject matter jurisdiction, mootness must be resolved as a threshold matter. Wallingford v. Department of Public Health, 262 Conn. 758, 766, 817 A.2d 644 (2003).

Our Appellate Court has said, "Mootness presents a circumstance wherein the issue before the court has been resolved or had lost its significance because of a change in the condition of affairs between the parties . . . A case becomes moot when due to intervening circumstances a controversy between the parties no longer exists . . . An issue is moot when the court can no longer grant any practical relief." Taylor v. Zoning Board of Appeals, 71 Conn.App. 43, 46, 800 A.2d 641 (2002) (citation omitted).

B. Practical relief

Where a challenged action, though moot, produces collateral legal consequences, our Supreme Court has said that the action is nonetheless eligible for judicial review. For example, in an otherwise moot case involving a criminal conviction, the court's vindication of an individual's rights provides him practical relief from the potential collateral consequences that can follow with a criminal conviction. The Barlow court explained, "The collateral consequences of a conviction are legion: subsequent convictions might, as a result, carry heavier penalties and a wide range of civil rights might be affected, including a defendant's eligibility to hold public office." Barlow v. Lopes, 201 Conn. 103, 112-13, 513 A.2d 132 (1986).

The collateral legal consequences of the department's suspension of an operator's driving privilege are ordinarily unlike those which flow from a criminal conviction. Phaneuf v. Commissioner of Motor Vehicles, 166 Conn. 449, 453, 352 A.2d 291 (1974). However, as our Appellate Court has recognized, there can be collateral consequences to a license suspension. For example, in Schallenkemp v. DelPonte, 29 Conn.App. 576, 581, n. 6, 616 A.2d 1157 (1992), cert. granted, aff'd, 229 Conn. 31, 639 A.2d 1018 (1994), where the plaintiff challenged her completed license suspension, which had been imposed pursuant to § 14-227b, our Appellate Court noted that collateral legal consequences to the plaintiff's license suspension existed, insofar as "a reversal of the suspension would lessen the effect of a future violation of [§ 14-227b] on the plaintiff."

In this case, the plaintiff does not challenge the legality of either of his suspensions. Rather, he contests the manner in which he was required to serve those suspensions. However, the manner in which he served those suspensions will not affect him in the future. Accordingly, the plaintiff is not subject to collateral consequences, so that the court cannot grant him practical relief. Therefore, the complaint is moot.

C. " Capable of repetition, yet evading review"

As noted above, an issue that is moot may nonetheless qualify for judicial review under the "capable of repetition, yet evading review" exception to the mootness doctrine. Sweeney v. Sweeney, 271 Conn. 193, 201, 856 A.2d 997 (2004). Our Supreme Court has articulated the following three requirements for an otherwise moot controversy to be justiciable under that exception: "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 jurisdiction 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 complaining party or a reasonably identifiable group for whom that party can be said to act as surrogate. Third, the question must have some public importance." Loisel v. Rowe, 233 Conn. 370, 382-83, 660 A.2d 323 (1995).

I. Limited duration

Our Supreme Court has explained the "inherently limited duration requirement" as follows:

Most cases in which review has been undertaken despite a claim of mootness implicitly recognize the existence of functionally insurmountable time constraints . . . Even in instances in which the ['capable of repetition, yet evading review'] exception did not apply for some other reason, there was no doubt that the challenged action had an intrinsically limited lifespan . . . If an action or its effects is not of inherently limited duration, the action can be reviewed the next time it arises, when it will present an ongoing live controversy.

Loisel v. Rowe, at 383-84 (internal citations omitted).

In Loisel, despite the insistence of both parties that the question presented was "capable of repetition, yet evading review," the court dismissed the case as moot because "[t]he parties . . . failed to establish . . . a strong likelihood that the substantial majority of cases challenging the action in question will become moot before they can be reviewed." Id. at 387-88.

The provisions of § 4-175 require that, before a plaintiff can bring an action for declaratory judgment, he must petition the agency for a declaratory ruling pursuant to § 4-176.⁴ The agency then has sixty days to act on the petition.⁵ Only after the agency acts on the petition can the plaintiff then file an action for declaratory judgment pursuant to § 4-175.⁶ These statutory requirements present an exceptionally narrow time frame which, in effect, precludes operators from procuring the desired relief before completing most license suspensions in their entirety. For these reasons, the court finds that the challenged action in this case satisfies the "inherently limited duration requirement."

4 Section 4-175, supra.

5 The provisions of § 4-176 provide, in relevant part "(a) Any person may petition an agency . . . for a declaratory ruling as to the validity of any regulation, or the applicability to specified circumstances of a provision of the general statutes, a regulation, or a final decision on a matter within the jurisdiction of the agency. (e) Within sixty days after receipt of a petition for declaratory ruling, an agency in writing shall: (1) Issue a ruling declaring the validity of a regulation or the applicability of the provision of the general statutes, the regulation, or the final decision in question to the specified circumstances, (2) order the matter set for specified proceedings, (3) agree to issue a declaratory ruling by a specified date, (4) decide not to issue a declaratory ruling and initiate regulation-making proceedings, under 4-168, on the subject, or (5) decide not to issue a declaratory ruling, stating the reasons for its action."

6 Section 4-175, supra.

2. Capable of repetition CT Page 2742

As explained by the court in Loisel, the "capable of repetition" element requires two separate 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. at 384. The Loisel court described these components of the "capable of repetition" requirement as the "ongoing program" and "same party" factors, respectively. Id.

In Shays v. Local Grievance Committee, 197 Conn. 566, 499 A.2d 1158 (1985), the court determined that the challenged action did not satisfy the "ongoing program" factor. In that case, the Supreme Court dismissed as moot a writ of error by the plaintiff, a state legislator, who had completed his sentence of incarceration for contempt of court. Concluding that the question presented did not qualify for review under the "capable of repetition, yet evading review" doctrine, the Shays court said, "It goes without saying that there has been neither an allegation nor showing that contempt proceedings against legislators are part of an ongoing penal or civil program . . . In short, this record demonstrates an isolated incident not likely to be repeated in the foreseeable future." Id. at 574.

The question presented in this case is clearly distinguishable from that in Shays. By its own admission, the department's manner of imposing license suspensions is part of an "ongoing program." Thus, the department's requiring the plaintiff to serve his license suspensions consecutively does not represent "an isolated incident not likely to be repeated in the foreseeable future." Id.

The department's principal challenge to the plaintiff's satisfying the "same party" factor is that the plaintiff has failed to give notice to persons likely to be affected by the decision in this case, as required by Practice Book § 17-56.⁷ Consequently, the department argues, the plaintiff is not adequately representing their interests.

7 Practice Book § 17-56(b) requires, in relevant part: "All persons who have an interest in the subject matter of the requested declaratory judgment that is direct, immediate and adverse to the interest of one or more of the plaintiffs or defendants in the action shall be made parties to the action or shall be given reasonable notice thereof."

While it is true that the plaintiff has failed, at this stage of the proceedings, either to join interested parties or to give them notice of this action, that defect is not jurisdictional. In Berlin Batting Cages v. Planning Zoning Comm., 76 Conn.App. 199, 821 A.2d 269 (2003), the Appellate Court made clear that, in an action for declaratory judgment, failure to give notice to interested parties in accordance with Practice Book § 17-56 does not divest the court of subject matter jurisdiction:

Effective January 1, 2000, our rules of practice were amended to provide that challenges to the failure to provide notice in a declaratory judgment action must be made by way of a motion to strike as provided by Practice Book § 10-39(a)⁸ . . . As the official commentary to that section provides: "Under Section 17-56 as amended, the exclusive remedy for . . . failure to give notice to interested persons in declaratory judgment actions is by a motion to strike . . . if the motion to strike is granted, the party seeking the declaratory judgment could either file a new pleading or move for judgment and then appeal." As subsequently stated in 37 Huntington Street, H, LLC v. Hartford, 62 Conn.App. 586, 593, 772 A.2d 663, cert. denied, 256 Conn. 914, 772 A.2d 1127 (2001), that change makes "explicit what formerly had been implicit," that is, that the failure to comply with the notice requirement is not a jurisdictional defect.

8 Practice Book § 10-39 provides, in relevant part: "(a) Whenever any party wishes to contest . . . (3) the legal sufficiency of any such complaint . . . because of the absence of any necessary party or, pursuant to Section 17-56(b), the failure to join or give notice to any interested person . . . that party may do so by filing a motion to strike the contested pleading or part thereof."

Berlin Batting Cages v. Planning Zoning Comm., at 222, n. 10.

The court concludes that the question presented in this case is likely to recur and that the interests of the people likely to be affected by the court's decision are adequately represented by the plaintiff. Therefore, the court finds that the challenged action in this case satisfies the "capable of repetition" requirement.

3. Public importance

The plaintiff's complaint challenges the constitutionality of the department's policy, which, apparently, has not heretofore been subjected to judicial review. Therefore, the court's decision on the issues raised by the complaint will affect a substantial number of the state's motorists. For these reasons, the court finds that the complaint in this case satisfies the "public importance" element of the "capable of repetition, yet evading review" exception to the mootness doctrine.

V. CONCLUSION

Even though the issue raised is moot, it satisfies the requirements of the "capable of repetition, yet evading review" doctrine, so that the court enjoys subject matter jurisdiction. Accordingly, the motion to dismiss is denied.