Edward Bateson et al. v. Gary Weddle (2009)

MEMORANDUM OF DECISION

MOTION TO DISMISS

The plaintiffs-petitioners have filed a writ of quo warranto.   The respondent-defendant has moved to dismiss the complaint for the reason that “the plaintiffs have not sufficiently alleged standing to prosecute this action sounding in quo warranto.”   Specifically, the respondent-defendant claims the plaintiffs-petitioners have not sufficiently alleged standing as taxpayers;  alleged special injury distinct from the general public;  or alleged any injury at all.

The plaintiffs, concerned citizens, residents and taxpayers of Fairfield, Connecticut, have filed a writ of quo warranto, dated April 28, 2009.¹  This is an action brought pursuant to General Statutes § 52-491 which provides:

When any person or corporation usurps the exercise of any office, franchise or jurisdiction, the superior court may proceed, on a complaint in the nature of a quo warranto, to punish such person or corporation for such usurpation, according to the course of the common law and may proceed therein and render judgment according to the course of the common law.

The complaint of quo warranto alleges that Section 9.1 of the Fairfield Town Charter establishes the office of the Conservation Director and invests the director with the rights and duties of a town officer.²  Section 10.3.B. (1) of the Charter provides:

The Conservation Commission shall have all of the powers and duties conferred by this Charter, by ordinance, and on conservation commissions generally by Section 7.131a of Chapter 97 of the General Statutes.

The complaint also alleges that Section 10.3.D of the Charter regarding the director and other employees and consultants, provides:

“The Commission shall appoint a Director with the approval of the First Selectman.   The Commission shall have the power to engage such employees or consultants as it requires to carry out its duties, including a wetlands administrator and assistants who, subject to the general supervision of the Director, shall enforce all laws, ordinances and regulations relating to matters over which it has jurisdiction and who shall have other such duties as the Commission or the Director may prescribe.”  (Emphasis supplied.)

The complaint alleges that Thomas Steinke, at all relevant times, was, and still is, the duly appointed Conservation Director for the Town of Fairfield.   On January 15, 2008, the First Selectman of Fairfield, Kenneth Flatto, engaged the services of the defendant Weddle, as a consultant to exercise general supervision over other consultants who had also been hired by Flatto on behalf of the Conservation Commission.   The duties of all such consultants and the defendant Weddle, relate to the project known as the Fairfield Metro Center (“Metro Center”).   Prior to Weddle's hiring by Flatto, there had been no vote of the Conservation Commission to hire Weddle.   The plaintiffs claim that the hiring of Weddle, therefore, was “illegal, null and void,” as the Charter allows only the Conservation Commission to engage such consultants to perform duties on behalf of said Commission.

The complaint further alleges that on March 27, 2008, following Weddle's engagement as a consultant by the First Selectman, the Conservation Commission hired Weddle as the Wetlands Compliance Officer, to exercise general supervision over consultants engaged by the Commission, for the Metro Center project.   At the same time, the Commission excluded Conservation Director Steinke from exercising his authority of general supervision over the defendant Weddle on the Metro Center project, although Steinke was allowed to continue his authority, pursuant to the Charter, over all other matters within the jurisdiction of the Commission.   The plaintiffs allege and complain that the Commission's engagement of Weddle was illegal, null and void, in that the Commission failed to comply with the Charter's mandatory requirement that the Wetlands Compliance Officer shall be subject to the general supervision of the Conservation Director, as set forth in Section 10.3.D of the Town Charter.

The plaintiffs' complaint concludes by alleging that ever since Weddle's engagement by Flatto and the Commission, Weddle, by failing to recognize the Conservation Director Steinke's exclusive jurisdiction of general supervision over all consultants and Weddle himself, has usurped the office of the Conservation Director, as it relates to the Metro Center project.   The plaintiffs allege that Weddle continues to exercise the rights, powers and privileges of the office as it relates to the Metro Center project, to the exclusion of Conservation Director Steinke in violation of the Charter.

I

Standard of Law

“[A] party must have standing to assert a claim in order for the court to have subject matter jurisdiction over the claim ․ Standing is the legal right to set judicial machinery in motion.   One cannot rightfully invoke the jurisdiction of the court unless he has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy ․ [Our Supreme Court] has often stated that the question of subject matter jurisdiction, because it addresses the basic competency of the court, can be raised by any of the parties, or by the court sua sponte, at any time ․” (Citations omitted.)  Lewis v. Slack, 110 Conn.App. 641, 643 (2008).   “Standing ․ is not a technical rule intended to keep aggrieved parties out of court;  nor is it a test of substantive rights.   Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate non-justiciable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented.”  (Citations omitted;  internal quotation marks omitted.)  Id. at 643-44.  “Where a plaintiff lacks standing to sue, the court is without subject matter jurisdiction.”  Id., 644.

“Standing is established by showing that the party claiming it is authorized by statute to bring suit or is classically aggrieved ․ The fundamental test for determining aggrievement encompasses a well-settled twofold determination:  first, the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in [the subject matter of the challenged action] ․ 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.”  (Citation omitted;  internal quotation marks omitted.)  Id., quoting, Avalon Bay Communities, Inc. v. Orange, 256 Conn. 557, 568, 775 A.2d 284 (2001).

II

Discussion

A successful quo warranto action unseats an illegal office holder and declares the position vacant.   It does not place the rightful claimant into the office.  New Haven Firebird Society v. Board of Fire Commissioners, 219 Conn. 432, 436, 593 A.2d 1383 (1991).   In quo warranto proceeding, the title challenged must be to a public office.  New Haven Firebird Society v. Board of Fire Commissioners, supra, 436;  State ex rel. Stage v. Mackie, 82 Conn. 398, 400, 74 A. 759 (1909).   There are two criteria to determine whether a governmental position constitutes a public office within the meaning of the quo warranto statute:  (1) It must have its source in a sovereign authority speaking through the constitution or legislative;  and (2) its incumbent, by virtue of his incumbency, must be vested with some portion of the sovereign power which he is to exercise for the benefit of the public.  State ex rel. Neal v. Brethauer, 83 Conn. 143, 146, 75 A. 705 (1910).

In proceedings in the nature of quo warranto, the object is to test the actual right to the office and not merely a use under color of right.  Marsala v. Bridgeport, 15 Conn.App. 323, 328, 544 A.2d 191 (1988);  State ex rel. Southey v. Lashar, 81 Conn. 540, 545, 542 A. 636 (1899).  “It is well established that in quo warranto proceedings the burden is upon the defendant to show a complete title to the office in dispute.”  Marsala v. Bridgeport, supra, 328;  State ex rel. Gaski v. Basile, 174 Conn. 36, 38, 381 A.2d 547 (1977);  see State ex rel. Barlow v. Kaminsky, 144 Conn. 612, 616, 136 A.2d 792 (1957);  State ex rel. Wallen v. Hatch, 82 Conn. 122, 125, 72 A. 575 (1909);  State ex rel. Reiley v. Chatfield, 71 Conn. 104, 40 A. 922 (1898);  Cheshire v. McKenney, 182 Conn. 253, 256-57, 438 A.2d 88 (1980);  see also Beccia v. Waterbury, supra, 456-57.

By established case law, a taxpayer, has standing to bring a quo warranto action;  Carleton v. Civil Service Commission, 10 Conn.App. 209, 216, 522 A.2d 825 (1987);  Civil Service Commission v. Perkul, 41 Conn.Sup. 302, 308, 571 A.2d 715 (1989), aff”d, 221 Conn. 12, 601 A.2d 538 (1992) “The rationale for standing is that a taxpayer is interested in having the duties annexed to a public office performed by a person who has been legally elected or appointed thereto.”  State ex rel. City of Waterbury v. Martin, supra.   A taxpayer maintains this right whether or not another person claims the office.   Carleton v. Civil Service Commission, supra, 10 Conn.App. 216.

The defendant's argument that cases such as Tellier v. Zarnowski, 157 Conn. 370 (1969);  West Farms Mall, LLC v. Town of West Hartford, 279 Conn. 1, 13-15 (2006);  and Andross v. Town of West Hartford, 285 Conn. 309, 324-27 (2008) establish that taxpayers have no standing to bring this writ of quo warranto, is unconvincing.   Those cases sought injunctive and declaratory relief.   That is not the case in the present action.   See Bateson v. Weddle, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV09 4028444 (September 18, 2009, Arnold, J.).

The court additionally rejects the respondent's argument that Seymour v. Region One Board of Education, 274 Conn. 92, 874 A.2d 742, cert. denied, 546 U.S. 1016, 126 S.Ct. 659, 163 L.Ed. 526 (2005), is authority in this matter as it also does not address taxpayer standing in a quo warranto action.   The defendant cites additional cases discussing the threshold requirements for taxpayer standing, none of which address the issue as it applies to a writ of quo warranto.

The respondent-defendant invites the court to ignore our Supreme Court's decision in State ex rel. City of Waterbury v. Martin, 46 Conn. 479, 482 (1878), as “dicta” that “is without a reasoned and principled basis when examined.”   The holding in State ex rel. City of Waterbury v. Martin, supra, 46 Conn. 482, was cited more recently in Civil Service Commission v. Pekrul, 41 Conn.Sup. 302, 571 A.2d 715 (1989), aff”d (per curiam), 221 Conn. 12, 601 A.2d 538 (1992).  Pekrul restated that a taxpayer, has standing to bring the quo warranto action relying upon the decision in State ex rel. City of Waterbury v. Martin, supra, id. at 308.  Pekrul was affirmed by our Supreme Court.  Id.

Under the doctrine of stare decisis, courts exercising lower jurisdiction must accept as controlling precedent the law as declared by the decision of a court of a higher jurisdiction until such decision is reversed, overruled or qualified.  White v. Burns, 213 Conn. 307, 335, 567 A.2d 1195 (1990).   Whether a holding of a court of higher jurisdiction should be re-evaluated and possibly discarded is not for a court of lower jurisdiction to decide.   Bridgeport Board of Education v. Bridgeport Education Association, 9 Conn.App. 199, 203-04, 518 A.2d 394, cert. denied, 202 Conn. 802, 519 A.2d 1206 (1987).  “We are not at liberty to overrule or discard the decisions of our Supreme Court but are bound by them.”  State v. James, 69 Conn.App. 130, 133, 793 A.2d 1200 (2002).

Accordingly, this court finds that the plaintiffs-petitioners have alleged sufficient standing to bring the subject quo warranto action.   Accordingly, the respondent-defendant's motion to dismiss claiming a lack of standing, is hereby denied.

Judge Richard E. Arnold

FOOTNOTES

FN1. The named plaintiffs are Edward Bateson, Alexis Harrision, Jeanne Konecny, Philip Meiman, Pamela Ritter, Les Schaffer, Joycelyn Shaw and Jane Talamini..  FN1. The named plaintiffs are Edward Bateson, Alexis Harrision, Jeanne Konecny, Philip Meiman, Pamela Ritter, Les Schaffer, Joycelyn Shaw and Jane Talamini.

FN2. Section 9.1 of the Town Charter provides for the position of Conservation Director as an appointed Town officer..  FN2. Section 9.1 of the Town Charter provides for the position of Conservation Director as an appointed Town officer.

Arnold, Richard E., J.