Opinion
No. CV 08 4015243 S
February 25, 2009
MEMORANDUM OF DECISION RE MOTION TO DISMISS (105.00)
The plaintiffs, City of Stamford (City or Stamford) and Barry Callahan, fire marshal brought this quo warranto action against Anthony L. Olive, Jr. who has been appointed fire marshal by the Turn of River Fire Department which provides fire protection services in the Turn of River area within the City. By its complaint, the City and Callahan seek to require Olive to show by what warrant he claims to hold the office, and exercise the powers and privileges of fire marshal of the Turn of River Fire Department. A quo warranto action is authorized by statute, General Statutes § 52-491, and is employed to test a defendant's right to hold public office. Dumais v. Underwood, 47 Conn.App. 783, 788, cert. denied, 244 Conn. 918 (1998) [citing Chesire v. McKenney, 182 Conn. 253 (1980)].
According to the complaint, fire protection in Stamford is divided among a paid fire department, known as Stamford Fire and Rescue and five volunteer departments each of which is responsible for a specific geographic area of the City as designated on a map. Turn of River Fire Department, Inc. is a non-profit Connecticut corporation and is one of the five volunteer fire departments in Stamford. The complaint challenges Olive's right to hold the office of fire marshal or to act as a fire marshal.
Olive has moved to dismiss the amended quo warranto complaint on the grounds that the plaintiffs City and Callahan lack standing to prosecute this action.
Discussion
"If a party is found to lack standing, the court is without subject matter jurisdiction to determine the cause." (Internal quotation marks omitted.) Fort Trumbull Conservancy v. New London, 282 Conn. 791, 802 (2007). In its most recent discussion of the standing issue the Connecticut Supreme Court has said:
"Standing is the legal right to set judicial machinery in motion . . . Standing requires no more than a colorable claim of injury; a [party] ordinarily establishes . . . standing by allegations of injury. Similarly, standing exists to attempt to vindicate arguably protected interests . . ." Standing is established by showing that the party claiming it is authorized by statute to bring an action, in other words statutorily aggrieved, or is classically aggrieved . . ."The fundamental test for determining [classical] aggrievement encompasses a well-settled twofold determination: [F]irst, the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in [the challenged action], as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the [challenged action] . . ." "Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected." (Citations omitted; internal quotation marks omitted.)
Eder Bros., Inc. v. Wine Merchants of Connecticut, Inc., 275 Conn. 363, 369-70.
In its complaint the City and Callahan allege, correctly, that General Statutes § 29-297 provides that:
(a) The board of fire commissioners or, in the absence of such board, any corresponding authority in each town, city or borough, or, if no such board or corresponding authority exists, the legislative body of each city, the board of selectmen of each town, or warden or burgesses of each borough, or, in the case of an incorporated fire district, the executive authority of such district shall appoint a local fire marshal . . .
The plaintiffs also allege that plaintiff Callahan was appointed fire marshal in 1993 by the Stamford Fire Commission and continues to serve in that capacity. In their opposition to Olive's motion to dismiss, the plaintiffs contend the General Statutes authorize cities, towns, boroughs, and incorporated fire districts to appoint fire marshals. Since Turn of River Department is not an incorporated fire district the plaintiffs assert it has no authority to appoint a fire marshal.
In his motion to dismiss Olive argues at length that the City's power and authority is limited to that expressly set forth in its Charter . . . Def. Memorandum, (December 4, 2008) 3-8; Def. Reply Memorandum, (December 12, 2008) 3-7. While this contention is to a large extent valid, it is not particularly relevant to the issue of standing. More relevant are Olive's contentions that plaintiff Callahan is not eligible to be Turn of River Fire Department's fire marshal and that Callahan's status as a Stamford taxpayer does not provide standing because Olive's position as Turn of River fire marshal is an "unfunded, entirely volunteer position." Def. Reply Memorandum, 7.
Olive bases his lack of standing argument on Carleton v. Civil Service Commission, 10 Conn.App. 209 (1987), which he states holds that "[i]n a quo warranto action, whereby the plaintiff seeks to oust an illegal incumbent from public office, only the government that created the office at issue, persons entitled to claim that office, and taxpayers contributing to the funding of that public office have standing to proceed." Def. Memorandum, 3-4; Def. Reply Memorandum, 3. This twice made description of Carleton's holding is seriously flawed. As an initial matter the Appellate Court actually held that "[a] taxpayer qualifies because as such he is interested in having the duties annexed to the several public offices recognized by the City charter performed by person's legally elected or appointed thereto whether or not another person claims the office." Id. 216 [citing State ex rel. Waterbury v. Martin, 46 Conn. 479 (1878)]. Thus, Carleton specifically did not limit taxpayer standing in quo warranto cases to instances where there is an effect on tax revenues or expenditures.
Second, this court does not read Carleton as limiting standing solely to the parties mentioned in the decision. The Appellate Court stated that "standing to proceed in quo warranto is determined by the nature of the interest of the relator [plaintiff] in the contested public office." Id. That the court went on to identify the government that created the office, a claimant to the office, and a taxpayer as having the requisite interest does not mean they are the only ones having such an interest.
The defendant's other arguments in support of his motion to dismiss are not persuasive. Olive contends that the City charter does not authorize the City Fire Commission to appoint a fire marshal for the areas served by the volunteer fire companies and that Callahan is only authorized to act as fire marshal in the area served by Stamford Fire and Rescue. Def. Memo., 1 and n. 1. These arguments are not relevant to the issue of whether Olive has the right to hold his office. In any event, the City charter specifies that Callahan's powers are established by state statute and General Statutes § 29-297(a) states that "a" local fire marshal shall be appointed and the limits of his territorial jurisdiction shall be reported by the City clerk to the State Fire Marshal.
This court has not been informed what has been reported to the State Fire Marshal.
The defendant also contends that an earlier decision Turn of River Fire Department v. City of Stamford, Superior Court, judicial district of Stamford-Norwalk at Stamford, CV 074011910 (July 30, 2007, Karazin, J.) recognized that under certain agreements the City had recognized Turn of River Fire Department's right to conduct fire marshal activities and appoint a fire marshal. This argument may provide weight to the defendant's case on the merits, but it does not affect the issue of standing.
This court has considered all the arguments offered on the issue of the plaintiffs' standing. As noted earlier, the Appellate Court in Carleton identified certain parties who had the requisite interest to confer standing to prosecute a quo warranto case. These included the government which created the office and a claimant to the office. Neither the City nor Callahan created the position of Turn of River fire marshal and neither plaintiff is a present claimant to the position, although the plaintiffs do contend that if Olive is found not to be the legal fire marshal for Turn of River, Callahan might become the area fire marshal by default. However, Callahan is alleged to be a resident and taxpayer of Stamford, and based on Carleton and the previous discussion the court finds that status confers on Callahan the requisite standing to pursue this action. Furthermore, the court finds that both Callahan and the City have the requisite nature of interest in the subject office to confer standing as plaintiffs. The City has a strong interest that the holder of the office of Turn of River fire marshal have the appropriate qualifications because of the office's power to investigate fire-related incidents and issue building and other permits. The City has an interest that the fire code and building code be interpreted properly and consistently. Indeed, the complaint verified by Callahan recounts an incident where Olive denied a building permit applied for by the City which Callahan had submitted and approved. Callahan has the requisite standing in this case because he also has an interest in the seeing that the codes are interpreted properly, and he has an interest in seeing that a portion of his jurisdiction as fire marshal is not usurped improperly by someone who is not appointed in accordance with the law.
The court finds that both plaintiffs have a colorable claim of injury and a legally protected interest at stake. The motion to dismiss for lack of standing is denied.