Opinion
No. X07 CV-890492119S
January 4, 2007
MEMORANDUM OF DECISION
I
On July 9, 1996, our Supreme Court issued its opinion in this case, 238 Conn. 1, 678 A.2d 1267 (1996), declaring that the school districting program as set forth in General Statutes §§ 10-184 and 10-240, and as applied to the plaintiffs herein, twenty-two children, nineteen of whom resided in Hartford, was unconstitutional as it violated, under Article eighth, § 1 and Article first, §§ 1 and 20 of our state constitution, "their fundamental right . . . to a substantially equal educational opportunity that is free from substantial racial and ethnic isolation." Id., 37. The court directed the legislative and executive branches "to put the search for appropriate remedial measures at the top of their respective agendas." Id., 46.
The original eighteen plaintiffs are: "Milo Sheff, an African-American child residing in Hartford; Wildalize Bermudez, a Latino child residing in Hartford; Pedro Bermudez, a Latino child residing in Hartford; Eva Bermudez, a Latino child residing in Hartford; Oskar M. Melendez, a Latino child residing in Glastonbury; Waleska Melendez, a Latino child residing in Glastonbury; Martin Hamilton, an African-American child residing in Hartford; Janelle Hughley, an African-American child residing in Hartford; Neiima Best, an African-American child residing in Hartford; Lisa Laboy, a Latino child residing in Hartford; David William Harrington, a white child residing in Hartford; Michael Joseph Harrington, a white child residing in Hartford; Rachel Leach, a white child residing in West Hartford; Joseph Leach, a white child residing in West Hartford; Erica Connolly, a white child residing in Hartford; Tasha Connolly, a white child residing in Hartford; Michael Perez, a Latino child residing in Hartford; and Dawn Perez, a Latino child residing in Hartford." Sheff v. O'Neill, supra, 238 Conn. 4 n. 3.
Article eighth, § 1, of the constitution of Connecticut provides: "There shall always be free public elementary and secondary schools in the state. The general assembly shall implement this principle by appropriate legislation."
Article first, § 1, of the constitution of Connecticut provides: "All men when they form a social compact, are equal in rights; and no man or set of men are entitled to exclusive public emoluments or privileges from the community."
Article first, § 20, of the constitution of Connecticut, as amended by articles five and twenty-one of the amendments, provides: "No person shall be denied the equal protection of the law nor be subjected to segregation or discrimination in the exercise or enjoyment of his or her civil or political rights because of religion, race, color, ancestry, national origin, sex or physical or mental disability."
In December 2000, the plaintiffs sought further judicial assistance, which after a lengthy hearing and settlement discussions, resulted in a March 12, 2003 agreement covering the school years 2003-04 through 2006-07. The goal was to place at least 30 percent of the public school minority students residing in Hartford in desegregated schools, as defined by the agreement, by the end of the 2007 school year. The plan anticipated, among other things, the construction in Hartford of eight magnet schools with two opening each year each which would enroll approximately 600 students, and the utilization of the "Open Choice" program in which 30 percent of the Hartford children would be placed in schools in surrounding towns. As the agreement is now in its final year, as the goals are apparently not being met, and as the parties are now involved in further negotiations, the city of Hartford (city) has moved to intervene in this case claiming that it has substantial interests in almost every aspect of the case and that accordingly, it must be made a party. This court agrees.
II General Statutes § 52-107 states that "[t]he court may determine the controversy as between the parties before it, if it can do so without prejudice to the rights of others; but, if a complete determination cannot be had without the presence of other parties, the court may direct that such other parties be brought in. If a person not a party has an interest or title which the judgment will affect, the court, on his application, shall direct him to be made a party." Practice Book § 9-18 provides essentially similar language: "The judicial authority may determine the controversy as between the parties before it, if it can do so without prejudice to the rights of others; but, if a complete determination cannot be had without the presence of other parties, the judicial authority may direct that they be brought in. If a person not a party has an interest or title which the judgment will affect, the judicial authority, on its motion, shall direct that person to be made a party."In Rosado v. Bridgeport Roman Catholic Diocesan Corp., 60 Conn.App. 134, 140, 758 A.2d 916 (2000), the Appellate Court reviewed the four-part test for intervention as of right stating, "[t]he motion to intervene must be timely, the movant must have a direct and substantial interest in the subject matter of the litigation, the movant's interest must be impaired by disposition of the litigation without the movant's involvement and the movant's interest must not be represented adequately by any party to the litigation." See State Board of Education v. Waterbury, 21 Conn.App. 67, 72-76, 571 A.2d 148 (1990) (parent organization improperly denied right to intervene in mandamus action to implement a plan to eliminate racial imbalance in city's public schools); Kerrigan v. Commissioner of Public Health, 279 Conn. 447, 456-57, 904 A.2d 137 (2006) (public policy group was properly denied right to intervene where the group did not have an interest in the litigation different from any member of the general public).
Additionally, "[f]or purposes of judging the satisfaction of [the] conditions [for intervention] we look to the pleadings, that is, to the motion for leave to intervene and to the proposed complaint or defense in intervention, and . . . we accept the allegations in those pleadings as true. The question on a petition to intervene is whether a well-pleaded defense or claim is asserted. Its merits are not to be determined. The defense or claim is assumed to be true on motion to intervene, at least in the absence of sham, frivolity, and other similar objections . . . Thus, neither testimony nor other evidence is required to justify intervention, and [a] proposed intervenor must allege sufficient facts, through the submitted motion and pleadings, if any, in order to make a showing of his or her right to intervene. The inquiry is whether the claims contained in the motion, if true, establish that the proposed intervenor has a direct and immediate interest that will be affected by the judgment." (Citations omitted; internal quotation marks omitted.) Kerrigan v. Commissioner of Public Health, supra, 279 Conn. 457, citing Washington Trust Co. v. Smith, 241 Conn. 734, 747, 699 A.2d 73 (1997).
Turning first to elements two and three, the city claims that
[a]lthough the City has created new magnet schools in Hartford in response to the Order, the State's devotion of resources for these new magnet school projects has fallen far short of "sufficient." As a consequence, the City has been forced to incur hundreds of thousands of dollars in unfunded expenses to plan, create, implement and operate new magnet school programs. In addition, the City has been forced to spend hundreds of thousands of dollars in excess of State grants for the renovation, purchase and construction of attractive facilities to house the new magnet programs pursuant to the Sheff initiative.
In addition, the City will continue to incur substantial expenses for the magnet school program in excess of State funding over the remaining life of the plan and into the future. The City has a direct and immediate financial interest in seeing to it that the State defendants live up to their obligations under the Order to provide sufficient resources for the magnet school initiative set forth in the Order . . . The City's interest in participating in formulation of future remedies to reduce the racial, social, and economic isolation of Hartford's public school children is undeniable: Promoting racial, social, and economic integration of the City's schools will profoundly impact every aspect of the City's operation.
Assuming those claims are accurate, there can be no doubt that the city has a direct and immediate interest that will be affected by any future court ruling or negotiated settlement in this case. This court is mindful of the finding in Horton v. Meskill, 187 Conn. 187, 445 A.2d 579 (1982), where the court, in denying certain towns the right to intervene, held that while the impact of the financing equalization legislation would affect all municipalities, that alone would not constitute a sufficient interest. The court found that the "rights at stake are the students' constitutional rights to equal protection and free public education" and "[t]he state's duty to provide education is owed to the students, not the municipalities." (Citation omitted; emphasis in original.) Id., 195.
Interestingly enough, the city of Hartford was in fact granted the right to intervene in Horton on July 1, 1980.
While there are certainly common threads between Horton and Sheff in terms of the constitutional obligations owing to our school children, Sheff is specifically concerned with Hartford (and the greater Hartford area) children and with the Hartford public school system. Pursuant to General Statutes § 10-240, the city is the school district for Hartford and surely it has a substantial interest in the remedial aspects of any plan or initiative affecting its children, the racial, ethnic and economic segregation of the city's schools and, as a practical matter, much of the city. As the court noted in State Board of Education v. Waterbury, supra, 21 Conn.App. 73, "what can be more direct and personal than the interest of the parent of a school child in the subject matter of this mandamus action — namely, compelling the implementation of the proposed plan for a desegregated school in the . . . district?" In the present case, additional concerns include the siting, construction, operation, and funding of future magnet and other schools. Clearly, the city has far more than just a financial interest. The city's input must be considered in future discussions.
General Statutes § 10-240 states in relevant part: "Each town shall through its board of education maintain the control of all the public schools within its limits and for this purpose shall be a school district and shall have all the powers and duties of school districts . . ."
The same reasoning applies to element four, the adequate representation factor. While both the plaintiffs and the state have many interests in common with the city — indeed all parties genuinely care about the education of the city's children — simple logic indicates that neither side can or will fully represent the city's interests in implementing, operating, and funding any future initiative.
Finally, returning to factor one, the timeliness of the petition, it is clear that while the case is not new, the resolution is yet to be fully determined. In Horton, supra, 187 Conn. 193, the court stated that "[t]he timeliness of a motion for intervention, however, must be judged by all of the circumstances of the case." Even though the court found that the movants did not have the required interest to intervene, the court noted, in terms of the timeliness issue, and certainly similar to the present case, that "[t]here is merit, however, to the applicants' claim that, although the present proceeding is technically a continuation of the original action, it is effectively a new action because it concerns the legislation adopted in 1979-1980, not the legislation declared unconstitutional by the Superior Court in 1974." Id., 194. In the present case, the goals of the 2003 agreement will apparently not be reached and, at any rate, the agreement expires shortly. Discussions or, perhaps, litigation will begin anew and the city should be part of the equation; timeliness is therefore not an issue and this court cannot see any prejudice to any party.
The state took no position on this motion; only the plaintiffs objected.
III
The city has also moved for permissive intervention. "The consideration of permissive intervention involves numerous factors including the timeliness of the intervention, the proposed intervenor's interests in the controversy, the adequacy of representation of such interests by existing parties, the delay in the proceedings or other prejudice to the existing parties the intervention may cause, and the necessity for or value of the intervention in terms of resolving the controversy before the court." Horton v. Meskill, supra, 187 Conn. 197.
The city has demonstrated in its petition that it has a substantial interest in this controversy; all four of the intervention as of right factors have been satisfied and accordingly, the city's motion to intervene is granted.
Certainly the same applies to the permissive intervention requirements.