Opinion
No. (X02) CV 97-0164460S
July 1, 2004
RULING ON MOTIONS FOR SUMMARY JUDGMENT
Like several other Connecticut municipalities, Stamford has a more densely populated area, which includes a business district, known as the city, and a larger, more rural area known as the town. (Revised Third Amended Complaint (complaint), count one, ¶ 14.) Since 1949, both the city and the town of Stamford have been governed by a single charter. The charter consolidated the town and city governments into a single organizational framework, but maintained dual systems of fire protection to some extent. (Complaint, count one, ¶¶ 16, 18.) The present case arises from this dual system of fire protection.
The defendants admit most of the allegations cited and do not significantly dispute the remainder. Other support for these allegations, as well as additional historical information about Stamford, is found in Moore v. Stamford, 134 Conn. 65, 65-67, 54 A.2d 588 (1947).
The plaintiffs are alleged to be taxpayers, firefighters, and a firefighters' collective bargaining representative from Long Ridge, which is an area in the town section of Stamford. See also note 6 infra. The plaintiffs have sued the city and three individuals: Dannel Malloy, the mayor of Stamford since 1995; John Byrne, who was the city's director of public safety, health and welfare; and James Haselkamp, who was city's director of labor relations. (Complaint, count one ¶¶ 8-11; Malloy affidavit, ¶ 2.) Also named as a defendant, pursuant to General Statutes § 52-101, is the Long Ridge Fire Company, Inc. (the company). Located in the Long Ridge section, this defendant is alleged to be a "mixed" fire company, comprised of both volunteer and professional firefighters. (Complaint, count one, ¶ 2.) The plaintiffs seek no relief against the company because its interests allegedly coincide with those of the plaintiffs. Instead, the company has filed a cross-complaint against the remaining defendants (collectively "the city").
General Statutes § 52-101 provides: "All persons having an interest in the subject of a civil action, and in obtaining the judgment demanded, may be joined as plaintiffs, except as otherwise expressly provided; and, if one who ought to be joined as plaintiff declines to join, he may be made a defendant, the reason therefor being stated in the complaint."
Count one of the complaint and cross-complaint allege violations of the city charter. Counts two and three of the complaint and counts two through five of the cross-complaint allege various due process violations. Count four of the complaint alleges interference with contractual relations, while count six of the cross-complaint alleges conversion. The city moves for summary judgment on all counts.
I
The defendants initially challenge the plaintiffs' standing on count one. The plaintiffs suggest that the defendants' challenge comes too late. Although standing normally arises on a motion to dismiss, the court can and does treat the standing arguments in the summary judgment papers as addressing a dismissal issue. See Cadle Co. v. D'Addario, 268 Conn. 441, 445 n. 5, 844 A.2d 836 (2004). Thus, the court must take as true all well-pleaded facts unless controverted by admissible evidence. See Barde v. Board of Trustees of Regional Community Colleges, 207 Conn. 59, 62, 539 A.2d 1000 (1988).
In its November 7, 2003 ruling concerning a prior version of the complaint and cross-complaint, the court found that the company had standing in the classical sense and stated that it could not "conclude with certainty that this case involves taxpayer standing and that the company lacks such standing." (November 7, 2003 ruling at 12, citing Board of Pardons v. Freedom of Information Commission, 210 Conn. 646, 649, 556 A.2d 1020 (1989), and Seymour v. Region One Board of Education, 261 Conn. 475, 489-92, 803 A.2d 318 (2002)). The court, however, has not ruled on the plaintiffs' and the company's standing to raise the claims alleged in the latest revision of their complaint and cross-complaint, which is dated January 21, 2004. In any case, because standing goes to the subject matter of the court, the court can address the issue at any time, and is required to dismiss the action whenever it finds that it lacks subject matter jurisdiction. See Park City Hospital v. Commission on Hospitals Health Care, 210 Conn. 697, 702-03, 556 A.2d 602 (1989); Stroiney v. Crescent Lake Tax District, 205 Conn. 290, 294, 533 A.2d 208 (1987); Practice Book § 10-33. Accordingly, the court will address the standing of both the plaintiffs and the company.
Section 10-33 provides:
Any claim of lack of jurisdiction over the subject matter cannot be waived; and whenever it is found after suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the judicial authority shall dismiss the action.
The company also objected at oral argument on the current motions that the defendants did not brief the issue of the standing of the company. There are, however, several additional considerations. First, the defendants do allege the company's lack of standing, "particularly as [sic] pertain to the City's budget and taxes," as their fifth special defense to the cross-complaint. Second, as mentioned, standing is a jurisdictional issue that the court can raise on its own at any time. Additionally, the question of whether the company has authority to sue is surely one that the company considered before filing suit in 2001 and has reconsidered since the November 3, 2003 oral argument on the dispositive motions concerning the prior pleadings. The company has, in fact, cited several cases in its brief that it claims establishes the authority of a nontaxpayer entity, such as the company, to sue over charter violations. Finally the company has filed a post-argument memorandum devoted to standing and other jurisdictional issues. Although the court did not give the company permission to file the memorandum, the court has considered the points and authorities contained therein. Thus, the company has had ample opportunity to address standing.
Our courts "have long recognized the capacity of taxpayers of towns and cities to challenge the legality of the actions of their municipal officers by seeking injunctive relief against such action." Alarm Applications Co. v. Simsbury Volunteer Fire Co., 179 Conn. 541, 548, 427 A.2d 822 (1980). "Absent the existence of another special relationship, . . . however, [our Supreme Court] has not recognized the capacity of an individual or a private corporation that has not alleged taxpayers' status to maintain an action challenging the propriety of the conduct of a municipal corporation." (Footnote omitted.) Id. Thus, a plaintiff who is not a taxpayer may not challenge the actions of a municipal corporation unless there is a separate legal relationship, such as being a bondholder or contractor, that provides the basis for standing. Id., 548 n. 3.
Furthermore, "a party's status as a taxpayer, without a demonstration by him of some tangible injury, does not by itself confer standing upon him when the defendant is a municipal corporation." Id. "Thus, our cases in this area have required two conditions for the maintenance of actions seeking to challenge municipal conduct: (1) the plaintiff must be a taxpayer of the defendant municipal entity; and (2) the plaintiff must allege and demonstrate that the allegedly improper municipal conduct causes him to suffer some pecuniary or other great injury." (Internal quotation marks omitted.) Id., 549. The alleged injury to the taxpayer has generally been demonstrated by evidence that the municipality has either directly increased taxes or appropriated moneys from local funds. See Sadloski v. Manchester, 235 Conn. 637, 648, 668 A.2d 1314 (1995).
Plaintiffs Joseph Berg, Ralph Nau, Robert Bennett, and Gunther Schaller are alleged to be residents of and taxpayers from the Long Ridge area of Stamford. (Complaint, count one, ¶ 5.) They allege that the defendants increased their taxes in order to pay for the stationing of engine six at the Long Ridge Station during the years 1997-99, that fire protection suffered during those years, and that, due to the actions of the defendants, the company is now on the brink of financial dissolution. (Complaint, count one, ¶¶ 36, 39, 41, 49, 54.) Plaintiffs Nau, Bennett, and Schaller also allege that they are company firefighters who are owed large amounts of salary that the company cannot pay because of the defendants' actions. (Complaint, count one, ¶¶ 1, 54.) These allegations suffice to confer taxpayer standing on these plaintiffs to seek injunctive relief against the defendants for violations of the city charter, as alleged in count one. See Sadloski v. Manchester, supra, 235 Conn. 648; Alarm Applications Co. v. Simsbury Volunteer Fire Co., supra, 179 Conn. 548.
Curiously, however, despite their lengthy and detailed allegations on other matters, the plaintiffs do not allege that the current elimination of the company's stations would cause any harm to the safety of the Long Ridge neighborhood.
Plaintiffs Peter Rustici, Donald Berg, Kevin Re, Louise Keenan, James Chevalier, and Long Ridge Paid Drivers Association are not alleged to be taxpayers of the Long Ridge section of Stamford. Instead, these individuals are generally alleged to be professional fire fighters employed by the company. (Complaint, count one, ¶ 1.) The Long Ridge Paid Drivers Association is alleged to be the collective bargaining representative of the professional employees of the company. (Complaint, count one, ¶ 4.) While these plaintiffs can raise constitutional, tort, or contract violations to the extent they have "another special legal relationship" with the city, they cannot, as nontaxpayers, raise charter violations. See Alarm Applications Co. v. Simsbury Volunteer Fire Co., supra, 179 Conn. 548 n. 3. Accordingly, these plaintiffs lack standing on count one.
Louise Keenan is alleged to be the executrix of the estate of John Keenan, a former fire fighter with the company and resident of the city of Stamford. (Complaint, count one, ¶¶ 3, 6.) Since John Keenan was not a resident of the section of Stamford that allegedly experienced a direct increase in taxes as a result of the challenged actions of the city, his estate representative, Louise Keenan, cannot claim taxpayer standing.
The same is true of the company. It does not allege to be a taxpayer. The affidavits filed after argument of this motion confirm that it is a not-for-profit corporation that does not pay property taxes. See General Statutes § 7-314(b). It does not claim to be a government agency, even if that status would confer standing. There is no other basis for it to sue the city concerning charter violations. Therefore, the company lacks standing on count one of the cross-complaint.
To the extent the company is a department of the city, it lacks statutory authority to sue or be sued in its own name. See E. McQuillan, The Law of Municipal Corporations § 12.40 (3d ed. 1997-2001); 64A C.J.S. Municipal Corporations § 1943 (1999). Cf. Board of Education v. Naugatuck, 257 Conn. 409, 778 A.2d 862 (2001); General Statutes § 10-241 (each school district "shall have power to sue and be sued . . .").
The court has examined the cases cited by the plaintiff, see note 4 supra, and found that they involve traditional common-law actions such as breach of contract, see Food Beverage Express Drivers Local Union v. Shelton, 147 Conn. 401, 161 A.2d 587 (1960), or, to the extent they involve suits concerning charter violations, do not address the governing rule of Alarm Applications Co. v. Simsbury Volunteer Fire Co., supra, 179 Conn. 548, discussed above. See New Haven Firebird Society v. Board of Fire Commissioners, 219 Conn. 432, 593 A.2d 1383 (1991); Local 773 v. Bristol, 39 Conn. Sup. 1, 5-6, 463 A.2d 628 (1983). In its post-argument supplemental memorandum, the company claims for the first time in this case that it has representative standing. Because the company has failed even to allege the elements of representative standing in its cross-complaint, the company cannot establish standing on this theory. See Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 432-36, 829 A.2d 801 (2003).
In view of the disposition of the company's remaining counts, the court need not conduct a further hearing on or otherwise attempt to resolve the issue of the company's standing on these counts.
II
The focus of the allegations concerning charter violations is, therefore, count one of the plaintiffs' January 21, 2004 Revised Third Amended Complaint. As its name suggests, the complaint has experienced many iterations. The last two were ordered by the court in an effort to clarify what the court had previously labeled as "a model of confusion." (Ruling on Pending Motions, November 7, 2003, p. 2.) The present complaint does not completely accomplish that result. Although now limited to charter violations, count one still encompasses several causes of action. The city appropriately pointed out this deficiency in its objection to the present complaint and suggested the need for a request to revise. See Practice Book § 10-35(3). The court overruled the city's objection in an effort to get the merits of this case, which has had a tortuous seven-year history: See Rustici v. Malloy, 60 Conn. App. 47, 758 A.2d 424, cert. denied, 254 Conn. 952, 762 A.2d 903 (2000). However, the court will now have to confront the difficulties of interpreting this overburdened count.
A
As best as the court can decipher, count one makes out two general claims. The first centers on the alleged physical "takeover" of station 2, which is one of the company's two fire stations. The plaintiffs allege that, on February 9, 1996, the city ordered a city fire engine and sixteen city firefighters assigned to station 2. Allegedly, this move adversely affected fire protection in the Long Ridge area as well as the employment status of the regular station 2 personnel. On May 29, 1998, the court, Leheny. J., issued a temporary injunction ordering the city to remove its equipment and personnel and to appropriate sufficient funds to provide the necessary level of fire protection to Long Ridge. The city did not remove its engine and personnel until November 28, 1998. (Complaint, count one, ¶¶ 27, 31-48.)
The plaintiffs now claim that the city's actions violated language in § C5-40-3(d) of the city charter. This language provides that: "The services of the Fire and Rescue Department under the control of the Chief shall be limited to the City Fire Service District, except in the case of an emergency. Nothing in this Charter shall be construed to affect the organization, status or property of the Volunteer Departments of Stamford." (Complaint, count one, ¶¶ 35, 36, 39.) The plaintiffs ultimately seek a permanent injunction and a declaratory judgment that would bar the city from affecting "the organization, status or property of the Long Ridge Fire Company by interfering with its real and personal property and/or by stationing elements of the Stamford Fire and Rescue Department in the Long Ridge area of Stamford, except in emergency . . ." (Complaint, count one, ¶¶ 56(a), 58(a).)
The court quotes the entire section and discusses it in greater detail in section II.B.2 of this ruling.
The plaintiffs embellish their allegations with charges that the defendants acted in retaliation for the company's exercise of protected constitutional rights, conspired with each other against the plaintiffs, threatened the company, and violated the company's collective bargaining agreement. (Complaint, count one, ¶¶ 31, 38, 40, 46.) These charges are not relevant to the claim in count one that the defendants violated the city charter.
Our appellate courts have stated:
The issuance of an injunction is the exercise of an extraordinary power which rests within the sound discretion of the court, and the justiciable interest which entitles one to seek redress in an action for injunctive relief is at least one founded on the imminence of substantial and irreparable injury . . . The extraordinary nature of injunctive relief requires that the harm complained of is occurring or will occur if the injunction is not granted. Although an absolute certainty is not required, it must appear that there is a substantial probability that but for the issuance of the injunction, the party seeking it will suffer irreparable injury.
(Internal quotation marks omitted.) Silitschanu v. Groesbeck, 12 Conn. App. 57, 64-65, 529 A.2d 732 (1987), aff'd, 208 Conn. 312, 543 A.2d 737 (1988). Accord Tighe v. Berlin, 259 Conn. 83, 87-88, 788 A.2d 40 (2002). Similarly, a declaratory judgment action requires "an actual bona fide and substantial question or issue in dispute or substantial uncertainty of legal relations which requires settlement between the parties . . . Practice Book § 17-55(2). Accord Wilson v. Kelley, 224 Conn. 110, 115, 617 A.2d 433 (1992). The court must look at the facts existing at the time of trial or determination and not at those existing at the commencement of the lawsuit. See Edward Balf Co. v. East Granby, 152 Conn. 319, 323, 207 A.2d 58 (1965).
The defendants move for summary judgment on these allegations on the ground that there is no imminent controversy. The party moving for summary judgment has the initial burden to bring forward evidentiary facts showing the absence of any material factual dispute. See Doty v. Shawmut Bank, 58 Conn. App. 427, 430, 755 A.2d 219 (2000). Correspondingly, "the party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue." (Internal quotation marks omitted.) Id. "Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment] . . ." (Internal quotation marks omitted.) United Services Automobile Association v. Marburg, 46 Conn. App. 99, 110, 698 A.2d 914 (1997). "To oppose a motion for summary judgment successfully, the nonmovant must recite specific facts in accordance with Practice Book (1998 Rev.) §§ 17-45 and 17-46 . . . which contradict those stated in the movant's affidavits and documents and show that there is a genuine issue for trial. If he does not so respond, summary judgment shall be entered against him" (Internal quotation marks omitted.) Doty v. Shawmut Bank, supra, 58 Conn. App. 430. Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment. See United Services Automobile Association v. Marburg, supra, 46 Conn. App. 110.
Practice Book § 17-45 provides in part: "A motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like."
Practice Book § 17-46 provides: "Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto."
In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. See Doty v. Shawmut Bank, supra, 58 Conn. App. 431. The test is "whether a party would be entitled to a directed verdict on the same facts." (Internal quotation marks omitted.) Id. "[T]he standards of summary judgment are strictly and forcefully applied." (Internal quotation marks omitted.) Id.
Practice Book § 17-51 authorizes summary judgment for part of a claim. In addition, the court has authority to treat a motion for summary judgment as a motion to strike and evaluate the legal sufficiency of the complaint. See Haynes v. Yale-New Haven Hospital, 243 Conn. 17, 32 n. 17, 699 A.2d 964 (1997); Drahan v. Board of Education, 42 Conn. App. 480, 498 n. 17, 680 A.2d 316, cert. denied, 239 Conn. 921, 682 A.2d 1000 (1996).
Section 17-51 provides: "If it appears that the defense applies to only part of the claim, or that any part is admitted, the moving party may have final judgment forthwith for so much of the claim as the defense does not apply to, or as is admitted, on such terms, as may be just; and the action may be severed and proceeded with as respects the remainder of the claim."
According to plaintiffs' own allegations, the incident in question ended over five and one-half years ago. The city, for its part, concedes that it can only move personnel and equipment to a volunteer company if there is an emergency, as provided in § C5-40-3(d), or if the volunteer company consents. (Defendants' brief in support of motion for summary judgment against plaintiffs, p. 10; defendants' brief in support of motion for summary judgment against the company, p. 5.) According to its affidavits, the city explains the 1996 incident as a matter of consent by the company. (Semmel affidavit, ¶¶ 9, 12, 14; Malloy affidavit, ¶ 8.)
The plaintiffs, for their part, do not even allege in their complaint any current attempt or desire by the defendants to assign city fire engines or personnel to station 2 or in any other way to stage a physical takeover of the company's station. The plaintiffs do allege that, on May 22, 1996, the defendants promulgated a "fire protection improvement" plan to take over the volunteer fire companies, including Long Ridge, and that they continue to pursue this plan. Rather than alleging an imminent physical takeover, however, the plaintiffs allege that the defendants seek to force the plaintiffs to "submit to their consolidation plan" by "[manipulating] appropriations to the [company]" — a claim that the court discusses below. (Complaint, count one, ¶¶ 37, 40, 41, 50.) Nor do the plaintiffs provide admissible evidence of any physical takeover. Thus, there is no factual dispute as to the imminent likelihood of physical action by the city that would violate § C5-40-3(d), and no substantial uncertainty of legal relations that requires settlement between the parties. From all that appears, this aspect of the controversy is long over. Accordingly, the court grants summary judgment to the defendants on the plaintiffs' request for injunctive and declaratory relief in paragraphs 56(a) and 58(a) of count one.
The statement in the affidavit of Peter Rustici that "[t]he defendants have made it perfectly clear that the only thing that prevents them from destroying the independence and autonomy of the [company] is this lawsuit," is too vague to constitute an admission of a party opponent or to otherwise constitute admissible evidence of a physical takeover. (Affidavit of Peter Rustici, ¶ 7.) In their brief, the plaintiffs now assert that the defendants "are discussing placing eight [city firefighters] in all of the volunteer stations as floaters." (Plaintiffs' brief, p. 9.) Even if this purported fact would have helped validate the plaintiffs' fear of a physical takeover, the court need not place any emphasis on it because it omits an important component. The actual statement of affiant Peter Rustici includes the italicized language: "[The defendants] have just floated a plan to put eight [city] floaters in all the volunteer areas except for Long Ridge. (Emphasis added.) (Affidavit of Peter Rustici, ¶¶ 6, 7.) In short, despite the years plaintiffs have had in this case to conduct discovery, they have not produced any evidence to counter the defendants' concession and evidence that they will share firefighting resources only upon the consent of the volunteer station or in an emergency.
B
The second category of claims made by the plaintiffs centers on the alleged inadequate funding of the company by the city. The plaintiffs allege that the defendants "have followed through on their threats to manipulate the company's finances in an effort to drive it and the plaintiffs into submission, or the company out of existence . . ." by withholding funds to pay for employees' salaries, training, upkeep of facilities, workers' compensation, and employees' pensions. (Complaint, count one, ¶¶ 40, 41.) Because the defendants allegedly "threaten to withhold and do withhold the money necessary for the Long Ridge Fire Company to be solvent . . ." the company is "deeply in debt" and "once again on the brink of financial dissolution." (Complaint, count one, ¶¶ 50, 53, 54.) Unlike the allegations concerning the stationing of equipment and personnel, the plaintiffs allege that the city's improper manipulation of the budget continues to the present time. (Complaint, count one, ¶¶ 41, 50, 54.)
To the extent that the plaintiffs challenge defendant Malloy's role in preparing and submitting a budget as mayor of Stamford, Malloy has absolute legislative immunity, regardless of his motives in doing so. See Bogan v. Scott-Harris, 523 U.S. 44, 55 (1998); Stamford City Charter, § 8-30-2; March 10, 2004 affidavit of Dannel Malloy, ¶ 7. See also Supreme Court of Virginia v. Consumers Union of the United States, Inc., 446 U.S. 719, 732-34 (1980) (absolute legislative immunity applies to requests for injunctive relief). Because the defendant municipality, and probably the other individual defendants, do not have such immunity, and the plaintiffs theoretically could obtain the injunctive relief they request from these remaining defendants, the court reaches the merits of this claim.
The plaintiffs claim that these actions by the city violate both charter § C8-40-4(b), a taxation provision discussed below, as well as charter § C5-40-3(d) insofar as these actions affect the "organization, status or property" of the company. The plaintiffs seek a permanent injunction to prevent the city from attempting, and a declaratory judgment that the charter does not permit the city to attempt, to affect "the organization, status or property of the Long Ridge Fire Company by unreasonably and arbitrarily withholding funds needed for the company to operate, including by manipulating the budget process as described above . . ." (Complaint, count one, ¶¶ 56(b), 58(b).) The plaintiffs also request an injunction to enjoin "the defendants to pay the company an amount to be determined at trial which is sufficient to restore the Long Ridge Fire Company to financial solvency so it can pay its debts to its employees and other creditors." (Complaint, count one, ¶ 56(c).) Finally, the plaintiffs seek an injunction "requiring the defendants in the future 1) to cease and desist from using the budgetary process to punish and intimidate the plaintiffs; and 2) ensure they are treated in a manner equivalent to the manner in which the employees of the other volunteer companies are treated." (Complaint, count one, ¶ 56(d).) The city moves for summary judgment on these allegations.
Such a request, of course, essentially amounts to a demand for money damages. Although taxpayer status normally confers standing only to obtain injunctive relief, Alarm Applications Co. v. Simsbury Volunteer Fire Co., supra, 179 Conn. 548, "in an action for injunction the court may, in addition to or in lieu of injunction, give . . . (a) judgment for damages . . ." Frillici v. Westport, 264 Conn. 266, 282, 823 A.2d 1172 (2003) (quoting 4 Restatement (Second) Torts § 951 (1979)). Such a power is "an adjunct to [the court's] equity jurisdiction." Id. (quoting 42 Am.Jur.2d, Injunctions § 272 (2000)).
The plaintiffs also allege that, in manipulating the budget, the city acted in bad faith to punish the plaintiffs in retaliation for their complaints. (Complaint, count one, ¶ 52.) Neither the plaintiffs' allegations about the city's bad motives nor, for that matter, a defense that the defendants' motives were good should affect the legal analysis of whether the defendants violated the city charter. See also note 11 CT Page 10293 supra.
1
The court first addresses the plaintiffs' claim that the inadequate funding of the company violates charter § C8-40-4. At the outset, the court must bear in mind the standards applicable to municipal charters.
It is well established that a city's charter is the fountainhead of municipal powers . . . The charter serves as an enabling act, both creating power and prescribing the form in which it must be exercised . . . It follows that agents of a city, including its commissions, have no source of authority beyond the charter. [T]heir powers are measured and limited by the express language in which authority is given or by the implication necessary to enable them to perform some duty cast upon them by express language . . . The interpretation of a charter is a question of law, and the rules of statutory interpretation generally apply.
(Internal quotation marks omitted.) AEL Realty Holding, Inc. v. Board of Representatives, 82 Conn. App. 613, 616-17, 847 A.2d 998 (2004).
Section C8-40-4 is located in Part 8, Division 4 of the charter, which are entitled, respectively, "Budgetary Procedures" and "Taxation." The section itself is entitled "Tax for Fire Service." It provides as follows:
(a) The property within the City Tax District shall be subject to taxation in an amount necessary to raise the net appropriation for all costs incurred for the operation of the Regular Fire Department, including principal and interest payments for bonds issued for capital improvements for the Regular Fire Department; provided it shall not be liable for any part of the contribution made to the Volunteer Fire Departments.
(b) Except for property within the City Tax District which is served by the Regular Fire Department, all other property within the Town Tax District which is served, or to which services are available by the Volunteer Fire Departments, shall be subject to taxation in an amount necessary to raise the net appropriation for the City's contributions for all costs incurred for the operation of the Volunteer Fire Departments, including fire hydrants, water supplies, and principal and interest payments for bonds issued for capital improvements for the Volunteer Fire Departments.
In sum, § C8-40-4 provides that the city shall tax residents of the city tax district for the city's appropriation for the regular fire department and tax residents of the town tax district for the city's appropriation for the volunteer fire department. From the language of the section, its title, and its placement within the charter, it is apparent that the focus of this section is taxation, not appropriations. While the section refers to the "net appropriation for the City's contributions for all costs incurred for the operation of the Volunteer Fire Departments . . ." it does so to describe the purpose of taxing the town tax district, and does not in any way guarantee a specific level of appropriation for the volunteer departments or for the company in particular. The plaintiffs, therefore, gain no relief from their claim that inadequate funding of the company violates § C8-40-4.
The plaintiffs do allege, as part of their multifaceted first count, that from 1997-99, town residents were taxed additionally to pay for the fire equipment and personnel belonging to the city, in violation of § C8-40-4(b). (Complaint, count one, ¶¶ 37(h), 39, 49.) The plaintiffs, however, do not request any injunctive or declaratory relief on these tax claims. Moreover, because the plaintiffs do not allege any imminent reoccurrence of, or any bona fide issue in dispute about, this five-year-old tax issue, there would be no basis for injunctive or declaratory relief on these claims, as explained in section II.A of this ruling.
2
The more difficult issue to analyze is the claim that the city's inadequate funding of the company violates the language of § C5-40-3(d) that "[n]othing in this charter shall be construed to affect the organization, status or property of the Volunteer Departments of Stamford." The court begins with an inquiry into the language and structure of this section of the charter. In full, § C5-40-3(d) provides as follows:
Jurisdiction. The services of the Fire and Rescue Department under the control of the Chief shall be limited to the City Fire Service District, except in the case of an emergency. Nothing in this Charter shall be construed to affect the organization, status or property of the Volunteer Departments of Stamford. The Fire Service Districts are indicated on the map of Fire Service Districts, prepared by the City Engineer, dated January 21, 1977 and on file in the Office of the Town and City Clerk of the City and shall delineate the fire service boundaries of the respective regular and Volunteer Fire Departments. Changes in Fire Service Districts may be made by ordinance adopted by a two-thirds' vote of the total membership of the Board of Representatives with the advice of the City Fire and Rescue Chief and the respective Chief of the Volunteer Fire Department affected.
Section C5-40-3(d) is located in Part 5, Division 4 of the charter, which are entitled, respectively, "City Departments" and "The Office of Public Safety, Health and Welfare." Section C5-40-3(d) is entitled "Fire and Rescue Department." Subsections (a), (b), and (c) of § C5-40-3 respectively address the powers and duties of the fire and rescue chief, the members of the regular fire and rescue department, and the fire marshal of the regular fire and rescue department. Although subsection (a) does not specifically limit the duties of the fire and rescue chief to that of the regular fire department, the first sentence of subparagraph (d), quoted above, appears to do so. Indeed, the first sentence of the section, when read in the context of the title of the section, tends to create a jurisdictional limit confining the regular fire department to the city fire district. There is, in fact, no mention of the volunteer departments in § C5-40-3 until the second sentence of subsection (d).
That being the case, it seems, at first blush, that the purpose of the second sentence of § C5-40-3(d), which is at issue here, would be to exclude the volunteer fire departments from all of the foregoing provisions relating to governance of the regular fire department and thus create a largely independent entity. This view is consistent with the history of the charter which, as mentioned, generally consolidated the former city and town governments but created an exception for fire protection services. The defendants acknowledge this much in their brief. They recognize that § C5-40-3(d) "delineates the respective jurisdictions of the various fire departments operating within the City, and tries to ensure some level of autonomy to the volunteer departments." (Defendants' brief in support of motion for summary judgment against company, p. 9.)
The defendants also contend, however, that the section "has nothing to do with funding." (Defendants' brief in support of motion for summary judgment against company, p. 9.) The difficulty with this position lies in the language of the provision which, of course, is critical. See AEL Realty Holding, Inc. v. Board of Representatives, supra, 82 Conn. App. 616-17. Section C5-40-3(d) does not say that "Nothing in this section shall be construed to affect the organization, status or property of the Volunteer Departments of Stamford." Rather, it provides that "Nothing in this charter shall be construed to affect the organization, status or property of the Volunteer Departments of Stamford." (Emphasis added.) The charter includes Part 8, entitled "Budgetary Procedures" and provisions such as § C8-30-1, entitled "The Budget Process," which addresses both revenues and expenditures. Thus, there is a reasonable argument that no power of city government authorized by the charter, including the power to spend municipal revenue, shall be construed to affect the organization, status, or property of the volunteer fire departments.
Section 8-30-1 provides:
The Mayor, the Board of Education, the Board of Finance and the Board of Representatives shall annually work together in good faith to develop and approve a municipal budget which shall include all expected revenues and expenditures for the next fiscal year and, for the purposes of financial planning, detailed estimates of revenues, capital expenses and operating expenses for each of the two fiscal years thereafter; however, it being understood that the budget estimates for the two years following the next fiscal year shall be for planning purposes, only those appropriations included in the budget for the next fiscal year shall be binding on the City.
The plaintiffs essentially make this argument. To be sure, the plaintiffs concede in their brief that "there is no claim that the charter requires either that the city or the town residents fund the Long Ridge Fire Company at any particular level." (Company's March 23, 2004 Supplemental Memorandum, p. 18.) The plaintiffs, as stated, nonetheless request injunctive relief to prevent the defendants from arbitrarily withholding necessary funds, to restore the company to solvency, and to give the company a form of financial parity with the other volunteer companies. Ultimately, the plaintiffs maintain that the city cannot take budgetary action that will substantially threaten the viability of the company. (Company's memorandum in opposition, p. 33.)
To a considerable extent, the plaintiffs' claims of inadequate funding and requests for relief run afoul of the political question doctrine. Based on the separation of powers, the political question doctrine provides that a matter is nonjusticiable if "some other branch of government has constitutional authority over the subject matter superior to that of the courts. The fundamental characteristic of a political question, therefore, is that its adjudication would place the court in conflict with a coequal branch of government in violation of that coordinate branch." (Internal quotation marks omitted.) Seymour v. Region One Board of Education, supra, 261 Conn. 481-82. For purposes of the political question doctrine, a town or city council qualifies as a legislative branch to which the courts owe deference. See Blackwell v. City of Philadelphia, 546 Pa. 358, 684 A.2d 1068, 1072 (1996).
Although the court addressed this issue in its November 7, 2003 ruling, the court revisits it based on the plaintiff's later revision of the complaint and a better understanding of the plaintiff's claims.
The disinclination of our courts to question the sufficiency of legislative appropriations is illustrated by several cases involving disputes between a town board of finance and the board of education over funding. See Board of Education v. Ellington, 151 Conn. 1, 10, 193 A.2d 466 (1963) ("If the plaintiff [board of education] abuses its power to transfer funds and thereby neglects the proper maintenance of the school properties or fails to provide some necessary school function, the problem becomes a political one which is within the power of the electorate to correct at the next election by changing the membership of the board . . .") Canzonetti v. New Britain, 147 Conn. 478, 482, 162 A.2d 695 (1960) ("When efforts at compromise fail and one agency cannot compel by law the action it desires from the other, a political, rather than a legal, issue is presented"); Board of Education of Stamford v. Board of Finance, 127 Conn. 345, 348, 16 A.2d 601 (1940) ("The [funding] controversy between the [board of education and the board of finance] falls within the political aspects of government rather than the judicial"); id., 353 ("If such boards do not exercise their judgment intelligently, fairly and disinterestedly, the situation is one, unfortunately not unknown, wherein a public official fails properly to perform the duties of his office, and the remedy is that inherent in the theory of representative government, to replace him by another"). See also Marrero by Tabales v. Commonwealth, 709 A.2d 956 ( Pa. Commw. 1998), aff'd, 559 Pa. 14, 739 A.2d 110 (1999) (claim that statutory scheme for funding education did not provide adequate funding for needy students presented a political question). Similarly, our Supreme Court has found the claim that inadequate financing of the state's judicial system had produced a backlog of civil jury cases in violation of the state constitution to be a nonjusticiable political question. See Pellegrino v. O'Neill, 193 Conn. 670, 674, 480 A.2d 476 (1984), cert. denied, 469 U.S. 875 (1984). See also Bogan v. Scott-Harris, supra, 523 U.S. 55-56 (submission and approval of municipal budget involved a "discretionary policymaking decision" sufficient to confer absolute legislative immunity on mayor and city councilor).
In the specific context of volunteer fire companies, our legislature has recognized the discretionary nature of the city's funding obligation. General Statutes § 7-301 provides for towns to establish a "town fire department" subject to regulation by the town's government. The section concludes with the following proviso: "Nothing in this section shall prevent any town, city or borough or incorporated fire district from appropriating funds to a volunteer fire company or companies for services rendered or to be rendered within the confines of such town, city, borough or district by such fire company or companies, provided such town, city, borough or incorporated fire district shall deem it in the public interest to do so." Thus, the legislature has made the funding of volunteer fire companies depend on the political question of whether the town government deems funding to be in the "public interest." See also Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 182, 544 A.2d 1185 (1988) ("the provision of police services to a city's general population is a quintessential discretionary governmental act").
There are, however, some limits to the political question doctrine in the context of public spending. Our Supreme Court has stated: "Although, of course, the manner in which any governmental function, educational or otherwise, is financed is generally a matter falling within the fiscal power of the legislative branch, that does not mean that the constitution textually commits to that branch any constitutional challenge to a particular system of financing." Seymour v. Region One Board of Education, supra, 261 Conn. 485. Thus, the question of whether a particular fiscal formula set forth in a statute violates the constitution is not a political one. Id.
From this proposition, however, it is somewhat of a leap to say that courts should adjudicate the question of whether a town's funding of a particular program violates a town charter. Although it was established in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), that courts have a duty to determine whether a statute violates the constitution, see Seymour v. Region One Board of Education, supra, 261 Conn. 486, there is no similar history addressing the matter of whether courts must resolve a dispute concerning a municipal charter. Similarly, there are "easily discoverable and manageable judicial standards . . . for determining whether a statute meets the requirements of due process . . . or equal protection of the laws . . ." id., 485, but the question of whether the level of a city's funding satisfies a charter provision, which involves essentially a governmental decision, is not as readily manageable. Cf. Board of Education v. Naugatuck, 257 Conn. 409, 425, 778 A.2d 862 (2001) (validity of town charter provisions involves question of statutory interpretation and therefore capable of judicial resolution). Further, a dispute between citizens and their municipal government concerning the adequacy of appropriations is fully capable of being resolved by the legislative, executive, or electoral processes of that government, to which the court owes due respect. See Seymour v. Region One Board of Education, supra, 261 Conn. 484.
Thus, the court concludes that at most a very deferential form of review is appropriate. See Barannikova v. Greenwich, 229 Conn. 664, 677-78, 643 A.2d 251 (1994) (deferential review of constitutionality of state's allocation of political power or governmental positions). Clearly, although every change in appropriations for the volunteer fire departments will have some effect on their "organization, property and status," the court cannot realistically become involved on every such occasion. The charter itself seems to permit some level of financial indebtedness or insolvency in the volunteer fire departments. Even the plaintiffs' request for the city to treat the company in a manner similar to that of the other volunteer departments requires the court to become entangled in a quintessentially political process and would show "a lack of due respect to a coordinate branch of government . . ." Seymour v. Region One Board of Education, supra, 261 Conn. 484. Such an intrusive approach might also compromise the mandate of General Statutes § 7-301 that the funding of volunteer fire departments depends on what the town deems within its public interest.
Section C8-40-8, entitled "Adjustment of Special Charges," provides:
Whenever one of the special service charges shows either or a deficit or a surplus at the end of the year, that deficit or surplus shall be computed in making the appropriation for that particular charge in the following year and the deficit or surplus shall be absorbed in that year. This section shall not apply to appropriations to Volunteer Fire Departments. (Emphasis added.)
On the other hand, if the prohibition in § C5-40-4(d) on charter-authorized budgetary actions that affect the "organization, status, and property" has any meaning that the courts can enforce, the prohibition surely prevents the city, through budgetary means otherwise authorized by the charter, from eliminating the volunteer fire departments. Thus, the political question doctrine should not bar the plaintiffs' opportunity to prove their allegations that, contrary to this prohibition, the city has "followed through on their threats to manipulate the company's finances in an effort to drive it and the plaintiffs into submission, or the company out of existence."
Section C5-40-3(d) also provides that "[c]hanges in Fire Service Districts may be made by ordinance adopted by a two-thirds' vote of the total membership of the Board of Representatives with the advice of the City Fire and Rescue Chief and the respective Chief of the Volunteer Fire Department affected." The court assumes that the plaintiffs' concern is to prevent the elimination of the company by means other than the passage of such an ordinance.
The defendants have not established the absence of a genuine issue of fact on this claim. Their evidence shows that, in the 2003-04 fiscal year, the mayor requested and the board of representatives appropriated at least $1,148,220 for the company. This sum seems substantial and greatly exceeds that appropriated for the other four volunteer fire departments in the town. (Affidavit of Benjamin Barnes, ¶ 5, incorporating the 2003-04 fiscal year operating budget.) However, the defendants supply no direct evidence on matters such as the expenses (and thus the net financial viability) of the company, whether the company is currently able to function based on its current level of financing, or whether there are any plans to decrease expenditures to the point at which the company cannot survive. Accordingly, the city has not met its initial burden on summary judgment. See Doty v. Shawmut Bank, supra, 58 Conn. App. 430. Further, the plaintiffs have presented the affidavit of Robert Bennett, the chief of the company, who has averred, among other things, that the company "is now deeply in debt." (Bennett affidavit, ¶ 14.) This affidavit creates a factual dispute about the survival of the company. Therefore, it is necessary to conduct a trial on the issue of whether the city, through inadequate funding, has eliminated the company, attempted to eliminate the company, or intends to do so.
The plaintiffs seek a jury trial. The essential nature of their claim, however, is for injunctive, declaratory or other equitable relief, especially given the disposition of their remaining claims, as discussed below. Therefore, there is no right to jury trial and the plaintiffs are entitled to a court trial only. See Commissioner of Environmental Protection v. Connecticut Building Wrecking Co., 227 Conn. 175, 182-83, 629 A.2d 1116 (1993).
III CT Page 10282
In previous rulings, the court interpreted the plaintiffs' and the company's constitutional claims as alleging procedural due process violations and prohibited the plaintiffs and the company from attempting to amend their claims to raise substantive due process or civil rights violations. Despite these rulings, the briefs of the plaintiffs and the company attempt to resuscitate substantive due process issues or simply confuse substantive and procedural due process concepts. At issue are counts two and three of the complaint and counts two, three, four, and five of the cross-complaint.
The briefs of the plaintiffs and the company focus on whether the defendants deprived them of various liberty and property interests — such as their right of freedom from retaliation against speech on matters of public concern or their alleged right to the proper use of their tax money — but do not meaningfully address whether the defendants deprived them of these alleged rights without procedural due process. Procedural due process refers to the question of whether "the method of procedure adopted [by the government] . . . gives reasonable notice and affords fair opportunity to be heard before the issues are decided." (Internal quotation marks omitted.) Northeast Savings, FA. v. Hintlian, 241 Conn. 269, 273-74, 696 A.2d 315 (1997). The question of whether the government has deprived a citizen of a liberty or property interest is only the first step in the procedural due process analysis. The full analysis involves the tripartite Mathews v. Eldridge test, which considers the following factors: "first, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail." Mathews v. Eldridge, 424 U.S. 319, 335 (1976). See State v. Long, 268 Conn. 508, 524, 847 A.2d 862 (2004) ("Thus, the only factor we must resolve is whether, based upon the judicial review that the defendant did receive, the defendant's liberty interest was subject to an unreasonable risk of erroneous deprivation, and the probable value of additional safeguards").
The plaintiffs and the company allege, and the defendants do not significantly dispute, that the plaintiffs commenced this lawsuit in November 1997 and obtained a temporary injunction in May 1998 ordering the defendants to remove their fire engine and firefighters from the company's station and to appropriate sufficient funds to provide the necessary level of fire protection to the residents of Long Ridge. (Complaint, ¶¶ 42, 44; cross-complaint, ¶¶ 31, 33.) When the defendants did not vacate the station at that time, the plaintiffs obtained another court order in November 1998 requiring the defendants to remove their equipment, with which order the defendants complied. (Complaint, ¶¶ 45, 47-48; cross-complaint, ¶¶ 34, 36-37.) Since that time, this protracted case has afforded the plaintiffs and the company several opportunities to be heard by the court on the various concerns they have advanced.
"[T]here is no violation of due process when a party in interest is given the opportunity of a meaningful time for a court hearing to litigate the question." (Internal quotation marks omitted.) Northeast Savings, F.A. v. Hintlian, supra, 241 Conn. 274. Because the plaintiffs and the company do not meaningfully brief, allege in their complaints, or provide evidence of any specific violation of procedural due process that would counter the undisputed history of the case just recited, the defendants are entitled to judgment as a matter of law on the procedural due process counts. See Red Maple Properties v. Zoning Commission, 222 Conn. 730, 742-43, 610 A.2d 1238 (1992); Merchant v. State Ethics Commission, 53 Conn. App. 808, 818, 733 A.2d 287 (1999).
The plaintiffs do not argue in their memoranda that they were entitled to any predeprivation notice and opportunity to be heard. This case, in any event, does not involve the deprivation of any individual rights analogous to the discharge of a public employee who can be terminated only for cause, which would give rise to a right to a pretermination hearing. See Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1984). Cf. Mathews v. Eldridge, supra, 424 U.S. 319 (evidentiary hearing not required prior to termination of social security disability payments); Jarmon v. Department of Social Services, 47 Conn. Sup. 492, 499-504, 807 A.2d 1109, 32 Conn. L. Rptr. 350 (2002) (notice not required prior to government's placement of a withholding order on assets of a child support obligor). In fact, after the city's takeover occurred in February 1996, the plaintiffs waited some twenty-one months before filing their suit and seeking to be heard in court.
To the extent that the plaintiffs and the company raise substantive due process arguments without acknowledging doing so, it is to no avail. "[W]here a particular Amendment provides an explicit textual source of constitutional protection against a particular sort of government behavior, that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing these claims." (Internal quotation marks omitted.) ATC Partnership v. Windham, 251 Conn. 597, 607, 741 A.2d 305 (1999), cert. denied, 530 U.S. 1214 (2000). Thus, the due process clause itself does not protect against the taking of property without just compensation. Rather, that protection, in civil cases, is found in the just compensation clause of the fifth amendment. Id., 607 n. 8. The plaintiffs have never identified the particular constitutional source of the alleged substantive rights that they claim the defendants have violated. In any case, regardless of how plaintiffs might label them, the plaintiffs' claims also appear foreclosed on the merits as a matter of law. See, e.g., Bogan v. Scott-Harris, supra, 523 U.S. 54-56 (local legislative and executive officials have absolute immunity concerning the legislative and budgetary process, regardless of their motives); Weinberger v. Salfi, 422 U.S. 749, 772 (1975) ("a noncontractual claim to receive funds from the public treasury enjoys no constitutionally protected status . . ."); Binette v. Sabo, 244 Conn. 23, 28-32, 710 A.2d 688 (1998) (article first, § 10 of the state constitution does not authorize a private right of action for damages). The plaintiffs' and the company's occasional allegations of a "violation of 42 U.S.C. § 1983" add nothing substantive to their complaint. (Complaint, counts two and three; cross-complaint, counts two and four.) Section 1983 is a procedural mechanism for raising violations of federal constitutional or statutory law against government officials or municipalities. However, "[o]ne cannot go into court and claim a `violation of § 1983' — for § 1983 by itself does not protect anyone against anything." (Internal quotation marks omitted.) Gonzaga University v. Doe, 536 U.S. 273, 285 (2002).
The individual defendants also seek summary judgment on these counts based on their absolute and qualified immunities. As stated, to the extent that the plaintiffs and the company challenge defendant Malloy's role in preparing and submitting a budget as mayor of Stamford, Malloy has absolute legislative immunity. See Bogan v. Scott-Harris, supra, 523 U.S. 55.
Qualified immunity protects a municipal defendant in civil rights suits "if the law was not clearly established at the time of the performance of his or her conduct or, in the case of clearly established law, if it was objectively reasonable for the public official to believe that his or her acts were lawful in light of the clearly established law." Schnabel v. Taylor, 230 Conn. 735, 746, 646 A.2d 152 (1994). The issue of qualified immunity is fully appropriate for adjudication on summary judgment motions. See Outlaw v. Meriden, 43 Conn. App. 387, 395, 682 A.2d 1112, cert. denied, 239 Conn. 946, 686 A.2d 122 (1996). The defendants have submitted affidavits that establish that defendant Malloy, as mayor, had final responsibility for the assignment of regular firefighters to the company in 1996, which he did with the consent of the company, and that, under the city charter, he has final responsibility for the city budget. Their affidavits also demonstrate that neither defendant Byrne nor defendant Haselkamp had any authority to override the mayor's decisions in these areas. (March 10, 2004 Malloy affidavit, ¶¶ 7, 8; Haselkamp affidavit, ¶¶ 7-8.) The defendants have thus met their initial burden on summary judgment.
The plaintiffs and the company appear to raise violations of the federal constitution under 42 U.S.C. § 1923 and to be suing directly under the state constitution for violations of that document. See Binette v. Sabo, 244 Conn. 23, 710 A.2d 688 (1998). Because it is well settled under federal law that the immunity defenses apply to § 1983 actions and to suits directly under the federal constitution, see Johnson v. Fankell, 520 U.S. 911, 914-15 (1997), and because state courts follow federal precedent in interpreting the doctrine of qualified immunity, see Outlaw v. Meriden, 43 Conn. App. 387, 395, 682 A.2d 1112, cert. denied, 239 Conn. 946, 686 A.2d 122 (1996), there is every reason to believe that absolute and qualified immunity apply to state constitutional claims.
In contrast, the plaintiffs have filed affidavits alleging that Malloy did not obtain the consent of the company before assigning regular firefighters there and that Haselkamp and Byrne were the "point men" in trying to force a consolidation plan on the company. (Nau affidavit, ¶¶ 1-10; Rustici affidavit, ¶¶ 3-13.) Even if the court construed these disputed facts in a light most favorable to the plaintiffs for purposes of summary judgment, they do not establish a violation of clearly established constitutional law. Indeed, the plaintiffs and the company do not meaningfully brief the issue of whether each defendant violated any clear constitutional norms. In fact, the complaints of the plaintiffs and the company, while referring to the "defendants" generally, do not specifically mention Haselkamp and Byrne in any substantive way. Thus, with regard to these defendants, the plaintiffs and the company have failed even to allege the sort of "personal involvement of defendants in alleged constitutional deprivations [that is] a prerequisite to an award of damages under § 1983." Johnson v. Newburgh Enlarged School District, 239 F.3d 246, 254 (2d Cir, 2001). For all these reasons, the court grants the defendants summary judgment on counts two and three of the complaint and counts two, three, four, and five of the cross-complaint.
The plaintiffs and the company instead argue that the defendants have waived their immunity defenses by not pleading them earlier. The defendants, however, asserted these special defenses in a timely response to the operative complaints filed by the plaintiffs and the company in January 2004. Thus, there was no waiver. The plaintiffs and the company also request further discovery on the issue of qualified immunity. They have failed, however, to file an affidavit to that effect as required by Practice Book § 17-47. Further, qualified immunity is a defense based on the objective legal reasonableness of the official's actions, rather than the official's subjective beliefs. See Mulligan v. Rioux, 229 Conn. 716, 729, 643 A.2d 1226 (1994). The plaintiffs and the company have had almost seven years to discover the actions that the defendants took and to research the law. There is no apparent basis for allowing further discovery on this issue.
IV
In count four of their complaint, plaintiffs Rustici, Re, Bennet, Donald Berg, Chevalier, Keenan, Nau, Schaller, and the Long Ridge Paid Drivers Association allege tortious interference with contractual and beneficial relations with the Company and "with the residents and taxpayers of the Long Ridge area." (Complaint, count four, ¶ 56.) The complaint does not specify what contracts or beneficial relations the defendants interfered with, but instead merely incorporates the substantive allegations of the first count. It appears from the plaintiffs' brief that their focus is on paragraphs forty-one, forty-six, fifty-three, and fifty-four, which allege that the city has delayed and withheld funds to pay for salaries of the company's employees, their training, their workers' compensation payments, and their pensions, causing the company to violate their collective bargaining agreement and go deeply into debt.
A claim for tortious interference with contractual relations requires the plaintiffs to establish:
(1) the existence of a contractual or beneficial relationship, (2) the defendants' knowledge of that relationship, (3) the defendants' intent to interfere with the relationship, (4) the interference was tortious, and (5) a loss suffered by the plaintiff that was caused by the defendants' tortious conduct . . . Unlike other torts in which liability gives rise to nominal damages even in the absence of proof of actual loss . . . it is an essential element of the tort of unlawful interference with business relations that the plaintiff suffers actual loss.
(Internal quotation marks and citation omitted.) Appleton v. Board of Education, 254 Conn. 205, 212-13, 757 A.2d 1059 (2000).
The plaintiffs themselves allege that the individual plaintiffs involved in this count are employees of the company. (Complaint, count one, ¶ 1.) The affidavit of Benjamin Barnes, director of administration for the city, establishes that the city does not appropriate anything directly for paid employees of the company. Instead, all of the money actually disbursed by the city goes to the company to spend in accordance with its priorities and obligations, including its obligations as employer of its paid personnel. (Barnes affidavit, ¶ 11.)
There are apparently no allegations that the city interfered with contractual relations of plaintiff Long Ridge Drivers Association or that it suffered any actual loss as a result of the city's actions.
The plaintiffs do not dispute the allegations in the Barnes affidavit. Thus, the only possible "interference" by the city with the receipt of employee salaries and benefits by the plaintiff would be a decision by city officials to appropriate less money than that needed by the company to pay for these matters. As to that matter, defendant Malloy, as discussed, has absolute legislative immunity. See Bogan v. Scott-Harris, supra, 523 U.S. 55. As to defendants Haselkamp and Byrne, while they would not have a qualified immunity defense against common-law claims, see Mulligan v. Rioux, supra, 229 Conn. 729-31, there are simply no allegations in the complaints that they had anything to do with the appropriations or budget process. The only possibly liable defendant is the city of Stamford.
Although the city would have governmental immunity from intentional torts, see Pane v. Danbury, 267 Conn. 669, 685-86, 841 A.2d 684 (2004), and the defendants allege governmental immunity as a special defense, they do not brief the issue. The court therefore considers it abandoned for purposes of this motion. See Merchant v. State Ethics Commission, supra, 53 Conn. App. 818.
As discussed above, however, the question of how much money the city should appropriate for its various programs and agencies is a nonjusticiable political question. This point is especially true in count four because the plaintiffs do not claim that underfunding by the city violates any constitutional, statutory, or charter provision. Rather, the claim in this count is only that the city is committing a common-law tort by underfunding a particular department. This claim is not a tort at all but rather a matter for the voters of Stamford to decide. The court will not interfere with their judgment.
The additional claim that the city interfered with relations between the plaintiffs and the "residents and taxpayers of the Long Ridge area" suffers from additional deficiencies. Again, the plaintiffs do not allege what contracts or relations the city interfered with. Indeed, it is hard to imagine how the city could interfere with relations between the plaintiffs and the residents of Long Ridge because the city is essentially the representative of those residents. In contrast to the situation here, the tort of interference with contractual relations lies only when "a third party adversely affect the contractual relations of two other parties." (Emphasis in original.) Wellington Systems, Inc. v. Redding Group, Inc., 49 Conn. App. 152, 168, 714 A.2d 21, cert. denied, 247 Conn. 905, 720 A.2d 516 (1998). Finally, the plaintiffs have failed to allege any actual loss from the city's alleged interference with the plaintiffs' relations with the public. See Appleton v. Board of Education, supra, 254 Conn. 212-13. For these reasons, the court grants summary judgment to the city on count four of the complaint.
V
The final matter at issue is count six in the cross-complaint, which alleges conversion. In order to resolve this count, it is necessary to review some of the checkered history of this case. The company filed its original cross-complaint on May 8, 2001. Both in that original cross-complaint and in a revised cross-complaint filed on May 31, 2001, the company alleged in their third and final count that "[t]he City of Stamford has converted and tortiously taken funds which belong to the Long Ridge company." On November 7, 2003, the court issued a ruling on pending motions and a scheduling order calling for the company to file a revised cross-complaint by December 3, 2003. As stated in the court's ruling, the primary purpose of the order to revise the cross-complaint was to separate causes of action that were improperly combined in the first count. (Ruling on Pending Motions, November 7, 2003, pp. 2-6.)
On December 3, 2003, the company filed an amended cross-complaint containing nine counts. Count seven, entitled "Conversion," alleged that the "defendants have interfered with the personal and real property of the Long Ridge Fire Company and with the Long Ridge Fire Company's right to money raised from taxpayers in the town areas which should have gone to provide fire protection and emergency rescue services in the Long Ridge area." (Amended cross-complaint, count seven, ¶ 49.) On December 4, 2003, the defendants filed an objection to the entire amended cross-complaint on the ground that it did not conform to the court's prior ruling. On December 29, 2003, the court sustained the city's objections to the cross-complaint. The focus of the court's concern was the company's addition of five new counts alleging violation of constitutional rights and one new count alleging civil conspiracy, as well as the addition of several counts alleging constitutional violations in the plaintiffs' complaint. The court stated: "The court at no time gave permission to add new causes of action. The plaintiffs and the company have improperly attempted to do so." (Ruling on Pending Motions and Objections, December 29, 2003, p. 1.) The court ordered that the plaintiffs and the company would have until January 21, 2004 to file additional revised pleadings that clarified their causes of actions without multiplying them.
The company filed the operative revised amended cross-complaint on January 21, 2004. The conversion count, now count six, alleges in paragraph forty-one that "[t]he defendants interfered with and converted the personal and real property of the Long Ridge Fire Company." Paragraph forty-two alleges that "[t]he defendants interfered with and converted money raised from taxpayers in the town areas which should have gone to the Long Ridge Fire Company to provided fire protection and emergency rescue services in the Long Ridge area, in an amount to be determined at trial." The defendants again objected immediately to the new cross-complaint on the ground that the cross-complaint did not conform to the court's December 29, 2003 ruling. On February 23, 2004, the court issued another ruling overruling the city's objections to the most recent amendments to the complaint and cross-complaint. The court stated: "The plaintiffs and the cross-complainant have substantially complied with the court's December 29, 2003 ruling by deleting the counts that they had previously attempted to add without the court's permission. The city's remaining objections can be addressed in dispositive motions or at trial." (Ruling on Objections, February 23, 2004.)
The court now concludes that the company had no authority to add the allegations to its two most recent cross-complaints that the defendants had converted real and personal property. The company agrees that there can be no conversion of real property, see Hartlin v. Cody, 144 Conn. 499, 508, 134 A.2d 245 (1957), so that claim is no longer in issue. As to the remaining claim of conversion of personal property, the court acknowledges that its previous rulings did not specifically deny the company permission to amend its cross-complaint to expand its conversion count. Because the court was confronted with the more significant and obvious problem of the plaintiffs and the company adding entire new counts to their pleadings, the more subtle amendment of the conversion count slipped under the court's radar. The spirit of the court's rulings, however, was that the company was to clarify its allegations but not expand them in any way. The defendants, moreover, have consistently objected to the company's attempts to amend their cross-complaint and the court indicated in its last ruling that it would consider remaining objections at the dispositive motions stage or at trial. Thus, the propriety of the amendment is properly before the court.
It is clear that the claim of conversion of personalty is different from the claim of conversion of "funds which belong to the . . . company," as alleged in the original cross-complaint, and now alleged as "money raised from taxpayers . . ." Although the cross-complaint does not identify the personal property allegedly converted, the affidavit of plaintiff Peter Rustici attached to the company's summary judgment motion states: "The Stamford Fire Rescue Department interfered with the Long Ridge Fire Company's use of Station 2 for nearly three years. They used our heating and diesel fuel; our water (they washed their cars nearly every day); our telephone; our plates, silverware, etc." (Affidavit of Peter Rustici, ¶ 16.) These items are certainly not the same as "money raised from taxpayers."
The allegations of conversion of personalty plainly relate to the period between February 9, 1996 and November 28, 1998, when the city assigned its fire engine and fire fighters to the company's station. In the court's view, it is improper for the company to wait three years after the filing of its cross-complaint to amend its complaint to add substantively different allegations concerning events that occurred well before that filing and about which it was obviously aware all along. It may well be difficult at this late stage for the defendants to reconstruct what items of personal property, including plates and silverware, they used at Station 2 between 1996 and 1998. Trial of this case is scheduled for September 28, 2004, which does not leave the defendants much time to prepare on this matter. Furthermore, the plaintiff's revision of the conversion count represents a subtle circumvention of the court's order prohibiting further expansion of the allegations. The court is not inclined to reward the plaintiffs for this transgression of its authority. For all these reasons, the court now denies permission to the company to amend its cross-complaint to add allegations of theft of personalty.
What remains is the last paragraph of count six, which alleges that the city "interfered with and converted money raised from taxpayers in the town tax areas which should have gone to the [company] to provide fire protection and emergency rescue services in the Long Ridge area, in an amount to be determined at trial." (Cross-complaint, count six, ¶ 42.) These allegations are insufficient to state a claim. Although money can be the subject of conversion, see Omar v. Mezvinsky, 13 Conn. App. 533, 536, 537 A.2d 1039, cert, denied, 208 Conn. 803, 545 A.2d 1101 (1988), generally "[a] plaintiff must establish legal ownership or right to possession in the particular thing, the specifically identifiable moneys, that the defendant is alleged to have converted." Macomber v. Travelers Property Casualty Corp., 261 Conn. 620, 650, 804 A.2d 180 (2002). A mere obligation to pay money may not be enforced by a conversion action. Id. In the present case, the company's allegations do not mention any specifically identifiable moneys, such as a check, or allege that the company had possession or ownership of such moneys. Indeed, the company alleges that the money was raised from the taxpayers. Given these allegations, the company cannot prove conversion of money. Accordingly, the defendants are entitled to summary judgment on count six of the cross claim.
In view of this disposition, the court need not address the city's claims that the statute of limitations bars the conversion claims, or that the defendants are protected by absolute legislative immunity.
VI
The court grants the defendants' motions for summary judgment except insofar as the plaintiffs claim in count one of the complaint that the defendants have eliminated, attempted to eliminate, or now intend to eliminate the company through inadequate funding. On that claim, the court denies the summary judgment motions and orders a court trial. It is so ordered.
In view of the disposition of these motions, the court sees no need to resolve the defendants' 1998 summary judgment motions, which raise the same issues, do not seek any affirmative relief, and rely on superseded pleadings.
Carl J. Schuman Judge, Superior Court