Opinion
No. CV09-5032996 S
September 7, 2011
MEMORANDUM OF DECISION
In this case the pro se plaintiff filed a notice of appeal wherein he seeks to "exercise (his) right of direct appeal to Superior Court from regulations, orders, and actions of the New Haven Board of Police Commissioners pursuant to (§ 14-313 of the General Statutes). It lies in three counts. The plaintiff in the final section of the complaint enumerates the many parking tickets he received and further states his car was booted and towed on several occasions. It also refers to the numerous fees and fines he paid in relation to these matters in 2009. Each of the three counts sets forth the basis of the plaintiff's alleged aggrievement. Paragraph 4-6 of the First Count generally states he "was aggrieved by the (city) Traffic Authority's regulations orders and actions because the Traffic Authority cited and towed (his) car for violating its street sweeping parking regulations multiple times." In previous paragraphs the plaintiff claims the Traffic Authority had no statutory authorization for its actions. In paragraph 5.7 of count two the plaintiff claims he was aggrieved by the Authority's regulations, orders and actions in the enforcement of its ordinances "because the Traffic Authority impounded my vehicle by booting and towing it, and cited my vehicle for parking on city streets with allegedly delinquent parking tickets, multiple times, while my right of appeal to Superior Court remained timely." In Section 6.3 of count three the plaintiff claims that: "The Traffic Authority's enforcement of parking tickets which did not inform me of my statutory rights to alternative appeal venues with alternative appeal deadlines deprived me of my right to due process of law under Article First, Section 8 and were unlawful, in excess of statutory authority, and an abuse of discretion."
In his claims for relief under Count 1 the plaintiff seeks a declaratory judgment, injunction or other ruling to the effect that the Traffic Authority may not lawfully enforce street sweeping regulations without maintaining permanent signs notifying parkers of street sweeping restrictions. Under Count 2 a declaratory judgment, injunction or ruling is sought to the effect that the authority may not lawfully tow or boot vehicles for "delinquent tickets until the statutory right to appeal to the next years session of Superior Court has been rendered untimely."
Under Count 3 a declaratory judgment, injunctive relief or other ruling is sought to the effect that parking tickets issued by the Traffic Authority are void and unenforceable unless such tickets include language notifying recipients of their statutory right to appeal to Superior Court and the deadlines for such an appeal.
These three prayers for relief are numbered paragraphs 10.1, 10.2, and 10.3 in the "relief sought" section.
Paragraph 10.4 asks for voidance of specific parking tickets, tows and boots mentioned in an "additional facts" section of the brief.
Paragraph 10.5 seeks repayment of $520 paid to the City of New Haven for unlawful parking tickets and boot fees with pre-and post-judgment interest.
Paragraph 10.6 seeks reimbursement of $231 paid directly to towing vendors for retrieval of the plaintiff car and $12 in taxi fare to get to the vendors with similar interest claims.
Paragraph 10.7 requests damages for loss of his time and use of his vehicle.
In paragraph 10.8 the plaintiff requests costs and fees in preparing, filing and prosecuting the appeal and paragraph 10.9 requests other relief, legal or equitable the court determines to be just.
The defendant New Haven Board of Police Commissioners has now filed a motion to dismiss. The motion is based on a claim that the court lacks subject matter jurisdiction. When first filed there were three ground set forth (1) the plaintiff failed to file a recognizance (2) plaintiff's claims for relief related to the parking tickets (paragraphs 10.4, 10.5, 10.6 and 10.7) should be dismissed because he failed to exhaust the intended and available administrative remedies (3) the plaintiff lacks standing pursuant to § 14-313 of the general statutes because of a lack of aggrievement (4) plaintiff's payment of the fees and fines related to his parking violations renders his appeal moot.
Upon oral argument counsel for the defendant Board of Police Commissioners confined his motion to a claim that the court lacked subject matter jurisdiction for the plaintiff's failure to exhaust administrative remedies.
(1)
It is clear under our case law that "the exhaustion of administrative remedies doctrine implicates subject matter jurisdiction." Hyllen-Davey v. Planning Zoning Commission, 57 Conn.App. 589, 592, cert. den. 253 Conn. 926 (2000), McDonnell v. Falco, 66 Conn.App. 508, 513 (2001), Loulis v. Parrott, 241 Conn. 180, 190-91 (1997); the most recent case for rule is Nyenhuis v. Metropolitan District Commission, 300 Conn. 708, 715 (2011).
"The two part rationale for the exhaustion doctrine is: (1) to effectuate the legislative intent that the issue in question `be handled in the first instance by local administrative officials in order to provide aggrieved persons with full and adequate administrative relief, and to give the reviewing court the benefit of the local board's judgment' . . . and (2) to relieve `courts of the burden of prematurely deciding questions' that may be resolved satisfactorily through the administrative process," Loulis v. Parrott, 241 Conn. at page 191, see also McDonnell v. Falco, 66 Conn.App. at page 513; see generally 2 Am.Jur.2d. "Administrative Law" § 474 discussing purpose of exhaustion requirement at pp. 401-03.
The court would also make some further observations relevant to the issues raised in this case relative to subject matter jurisdiction and the exhaustion requirement.
Very generally "in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." Fedus v. Planning Zoning Commission, 278 Conn. 751, 778-79 (2006).
More specifically, if the exhaustion argument is raised as a bar to court jurisdiction, the court must determine whether the administrative remedy is adequate, River Bend Association v. Simsbury Water Pollution, 262 Conn. 84, 100-01 (2002). But in Cannata v. Department of Environmental Protection, 215 Conn. 616, 629-30 nq (1990) the court said: "If the available administrative procedure . . . provide(s) the plaintiff with a mechanism for attaining the remedy that they seek . . . they must exhaust that remedy." On the other hand, "the plaintiff's preference for a particular remedy does not determine the adequacy of that remedy. (A)n administrative remedy, in order to be adequate, need not comport with the (plaintiff's) opinion of what a particular remedy would be," Kish v. Cohn, 59 Conn.App. 236, 240 (2000), quoted in River Bend case at 262 Conn. page 101.
In Waterbury v. Washington, 260 Conn. 506, 529-30 (2002) the court referred to prior federal and state case law to the effect that "the requirement of exhaustion may arise from explicit statutory language or from an administrative scheme providing for agency relief"; that is "the exhaustion doctrine is based on a judicial determination of a legislative intent that in certain cases the courts do not have initial subject matter jurisdiction because the legislature has committed the initial resolution of the matters in question to an administrative agency," id. (emphasis by this court). The underlined word and the general case law indicates that the exhaustion requirement can be waived by a municipality — this makes sense because in part the doctrine is aimed at furthering the interests of a government entity which under a statutory scheme otherwise would permit it to assert exhaustion requirements. As to waiver of the doctrine see 2 Am.Jur.2d article on "Administrative Law" at § 477. It has been held, for example, that an agency can waive the exhaustion requirement before the trial court, Dugan v. Ramsay, 727 F.2d 192 (CA1, 1984), cf Mathews v. Diaz, 426 U.S. 67, 76-77 (1976).
The court will try to apply these general principles to the case now before it and the exhaustion issue it raises.
(a)
Opposing the motion, the plaintiff argues that the City Charter at Title II, Article XIV, § 290 operates to waive administrative exhaustion in appeals from the defendant Commission. It reads as follows:
Any provision of section 2530 of the general statutes [28] to the contrary notwithstanding, any person aggrieved by any order, rule or regulation made by any traffic authority under the provisions of chapter 112 of the general statutes, [29] relating to the establishment of through streets, the making of safety zones, the establishment of parking restrictions or the location of loading and unloading zones in the city of New Haven, or by the performance of any act pursuant to the provisions of said chapter relating to traffic regulation in said city, may appeal to the court of common pleas for New Haven county, which appeal shall be returnable to said court on the next return day or the next but one following the date of the action of tile traffic authority appealed from. Upon such hearing, such court shall determine whether the order, rule or regulation appealed from is reasonable, and shall thereupon sustain or revoke such order, rule or regulation.
The court does not accept this argument. The underlined language does not refer to nor can it reasonably encompass the imposition of parking fines or towing fees albeit failure to comply with the rules or regulations referred may result in the issuance of tickets or towing in particular cases. To interpret the statute in the way suggested by the plaintiff would make meaningless other sections of the city ordinances which explicitly allow appeals of parking tickets and towing actions taken by agents or the city, see for example § 7-152b of the general statutes, § 29-30.1 of the city ordinances and § 29-119(f) of those ordinances. Legislative schemes must be read in such a way as to be harmonious and not self-contradictory, Collins v. Colonial Penn Ins. Co., 257 Conn. 718, 728 (2001).
Furthermore, the city ordinance the plaintiff relies upon refers to appeals to the Court of Common Pleas. That court has not been in existence for over thirty years and the city has not amended § 290 to insert Superior Court in lieu of Court of Common Pleas. It will not do to argue Superior Court is the "legal successor to the Court of Common Pleas." They are two different entities. Superior Court is a constitutional court while the Court of Common Pleas was created by the legislature as a court of inferior jurisdiction to use the language of the cases, cf Szarwak v. Warden, 167 Conn. 10 (1974); Walkinshaw v. O'Brien, 130 Conn. 122 (1943).
The Court of Common Pleas came to an end when it was merged into Superior Court.
CT Page 19084
(b)
The court, however, does have difficulty with the defendant Commission's position in other respects. It centers, as will be discussed, on the issue of notice. First the court will try to set forth the defendant's position which is clearly set forth in its April 6, 2011 reply brief. That brief noted that Section 29-119(f) of the city ordinances provides that an individual who has had his car towed "shall have the right to a tow review and it then goes on to say "if the reviewer determines that the underlying charge as outlined in the notice of violation is unfounded then the towing fees shall be refunded by the city, and the fine required for the parking violation shall be nullified. The brief goes on to note that in subsection (c) of the ordinance it is required that a sign be posted which explains the rate schedule for tows and that the sign also "include notice that review process forms are available at that location." Subsection (g) additionally provides "said person shall have the right to a hearing before a parking violations hearing officer as provided for under this chapter." The last phrase refers to § 7-152(b) of the general statutes and city ordinance § 29.30.1(e). It is further argued that "because a parking violations hearing officer may consider a tow review decision and also challenges to parking tickets, it makes sense that the officer may grant relief in the form of a refund of both parking citation fees and towing fees, as Mr. Travers states in his affidavit." Thus at least one level of administrative review is provided for challenges to parking tickets and tows as to which, argues the defendant, the plaintiff did not avail himself. The defendant also submitted an affidavit to show the practice of the Authority.Mr. Travers is the interim Director of the Department of Transportation, Traffic and Parking for the City of New Haven. He states he is "thoroughly familiar with on street ticketing and municipal towing policies and processes within the city," par. 3, 5 of affidavit. In paragraphs 6 and 7 it states:
6. If an individual timely contests a parking violation, including tows for accumulated unpaid parking tickets and for street sweeping, a hearing officer ordinarily hears and evaluates the matter (emphasis by court).
7. If a hearing officer determines that the ticket(s) and tow were improper, the Department reimburses the owner for the towing fees and any applicable storage charges, and voids the charges associated with the parking violations.
Paragraph 8 goes on to say this practice has been in place for many years.
Apart from the fact that there is no mention of reimbursement for other losses that may emanate from a towing found to be improper which on this record the court cannot say would not defeat an exhaustion argument, what does the word "ordinarily" mean in paragraph 7?
But moving directly to the notice problem the court will first make some brief introductory observations. It appears to be well settled law that the exhaustion doctrine cannot be invoked if the person otherwise subject to an agency decision has not received actual or constructive notice of that decision, Loulis v. Parrott, supra at 241 Conn. page 195, McDonnell v. Falco, supra, 66 Conn.App. at page 513, cf Hartnett v. Comptroller of Connecticut, 15 Conn.Sup. 336 (1948, Walter, J.). If we go to the beginning of the process, how can it be said that the exhaustion doctrine should apply to bar appeal to Superior Court because a citizen did not avail him or herself of an appeal procedure within the government entity when he or she was not given notice of the administrative remedy? Section 7-152b(c) of the general statutes requires that a person receiving a parking ticket receive from the city by first class mail a detailed notice of his or her right to contest a parking ticket, with notice of a right to a hearing to contest the city's parking ticket.
Section 29.30.1 of the city ordinance requires this notice pursuant to § 7-152(b). The city specifically takes on the obligation to send this notice. Again, all this applies to parking tickets. Both the state and city set fairly detailed standards for the notice that must be given to people receiving parking tickets.
In its final brief the defendant cites 29-119(f) as meeting notice requirements. That ordinance states a person whose vehicle has been towed "shall have the right to a tow review provided it is requested within 15 days. Subsection (c) of § 29-119 is said to mandate that a sign be posted explaining the rate schedule for tows and that the sign also include notice that review process forms are available at that location. Subsection (g) states if someone is dissatisfied with the reviewer's decision "said person shall have the right to a hearing before a parking violations hearing officer as provided under this chapter." That refers to a hearing under § 7-152b governing parking tickets which therefore as Mr. Travers says comport with longstanding policy to having hearing officers hear parking ticket and towing complaints.
But unlike § 29.30.1, as required by § 7-152b, the city does not itself mail out notice of these rights to contest towing charges — those regulations provide for actual notice. Here apparently private towing companies or garages that do towing must post a sign informing people of their rights to contest the towing actions. But what does the review process form state, is the person whose car has been towed actually informed of his or her right to a hearing in the sign itself, does the city check where any sign is displayed, does the city prepare the signs and the information included therein, was any such sign posted at the location to which the plaintiff's car was towed?
Without an answer to these questions, at least to the court, fundamental fairness if not due process dictates that the exhaustion doctrine should not apply to permit dismissal of this appeal.
This places no great or unfair burden on municipalities. They simply must give the same reliable notice regarding towing and the right to "tow review" as they do with parking tickets.
The court does not dismiss the appeal.