Thomas P. Reynolds et al. v. Edward St. John et al. (2013)

MEMORANDUM OF DECISION

On October 1, 2013, the court held an evidentiary hearing and heard oral argument concerning the defendants' motion to dismiss the plaintiffs' complaint (# 104).   The plaintiffs seek a writ of mandamus and injunctive relief.   The defendants contend that the court lacks subject matter jurisdiction due to mootness and failure to exhaust administrative remedies.¹

After considering the evidence, and the parties' written submissions and oral arguments, the court issues this memorandum of decision.

I

Background

The plaintiffs commenced this action by serving their verified complain (complaint) on September 4, 2013.   See return (# 103).   In the complaint, the plaintiffs, Thomas P. Reynolds and James E. Roy, allege that they are residents, taxpayers, and registered voters in the Town of Middlebury.   They also allege that they are police dispatchers, employed by the Town, and are responsible for receiving emergency calls from Town residents and then dispatching a rapid and efficient response from the Town police department and notification to the Town fire department.   See complaint, ¶ 4.

The plaintiffs allege that, in December 2012, the defendants, Edward St. John, Elaine M.R. Strobel, and Ralph J. Barra, all of whom are members of the Town's Board of Selectmen (defendants or Selectmen), covertly placed the outsourcing of the Town's emergency services on the Selectmen's agenda prior to their December 2012 meeting and, on December 3, 2012, voted to outsource the public safety responsibilities of the police dispatchers to an outside agency.   They allege that, as a result, their jobs as in-town police dispatchers were eliminated, without any input from the people of Middlebury.   See complaint, ¶¶ 5–6.

In December 2012 and March 2013, the plaintiffs presented petitions seeking a special Town meeting for the purpose of discussion the outsourcing of emergency services.   The plaintiffs allege that the defendants refused to call a special meeting since they determined that the petitions were not for a proper purpose.   See complaint, ¶ 7–9.

The December 2012 petitions sought to have the Town's 911 emergency dispatch system and communications department remain in operation without change and to reject the proposal to move the dispatch services to Northwest Connecticut Public Safety Communication Center, Inc. (Northwest).  See plaintiffs' Exhibit 2. The March 2013 petitions stated that, on December 3, 2012, the Selectmen voted to outsource the 911 emergency dispatch system and its police communications by entering into a five-year agreement with Northwest, and that, under the Middlebury Town Charter, the Selectmen must have the approval of the registered voters and property owners to do so.   The March 2013 petitions sought the scheduling of a special Town meeting to further discuss the outsourcing.   See plaintiffs' Exhibit 3.

According to a ruling by Connecticut's State Board of Labor Relations, dated September 20, 2013 (defendants' Exhibit 2), previously, in January 2012, the Connecticut Department of Emergency Services and Public Protection's “Office of Statewide Emergency Telecommunications (OSET) circulated an extensive Consolidation Feasibility Study (CFS report) prepared by an OSET consultant which recommended that many public answering points (PSAPs) be consolidated into regional dispatch centers.   The CFS report noted that using one dispatcher per shift gave rise to significant safety concerns and that investment by low volume PSAPs in state-of-the-art equipment was not cost effective.   Receiving an average of six 9–1–1 calls per day, the [Town of Middlebury's Dispatch Communications Center] had the third lowest annual call volume of the 107 PSAPs surveyed.”  (Footnote omitted.)

The defendants presented the affidavit of Larry Hutvagner, the Town's chief financial officer (Hutvagner affidavit).   Therein, he avers that the Town's contract with Northwest was effective in December 2012 and subsequently the Town paid its first $50,000 to Northwest pursuant thereto.   See Hutvagner affidavit, ¶¶ 6–7.   By entering into the contract, Middlebury joined with eight other municipalities in a regional entity that provides 911 dispatch services to its members.   See Hutvagner affidavit, ¶ 7.

On April 10, 2013, after the last petition was presented, and after a public hearing,² Middlebury's Board of Finance voted to approve a proposed budget for fiscal year 2013–14 that set funding for 911 dispatch services based on the Town's contract with Northwest and sent the budget to the Town's annual budget referendum.   At the May 8, 2013 budget referendum, Middlebury voters approved the proposed budget.   The Town is now in a different fiscal year than when the petitions were presented.   The Town has begun funding the contract with Northwest.   See Hutvagner affidavit, ¶¶ 10–11.

In May 2013, the contract was modified, to apply to additional years of service, and has different terms and conditions, and a different monetary amount than that set forth in the December 2012 petitions.   See Hutvagner affidavit, ¶ 10.

Substantial physical modifications were made to the Town's police department to prepare for no longer having a communications center and dispatch operation.   See Hutvagner affidavit, ¶ 10.   As of September 30, 2013, the Town has completely switched its dispatch of 911 calls to Northwest.   See Hutvagner affidavit, ¶ 9.³

Additional references to the factual background are set forth below.

II

Standard Of Review

“The standard of review for a court's decision on a motion to dismiss is well settled.   A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction ․” (Internal quotation marks omitted.)  Gold v. Rowland, 296 Conn. 186, 200, 994 A.2d 106 (2010).

“When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, it must consider the allegations of the complaint in their most favorable light ․ In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader ․ In contrast, if the complaint is supplemented by undisputed facts established by affidavits submitted in support of the motion to dismiss ․;  other types of undisputed evidence;  and/or public records of which judicial notice may be taken;  ․ the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts and need not conclusively presume the validity of the allegations of the complaint ․ Rather, those allegations are tempered by the light shed on them by the [supplementary undisputed facts] ․ If affidavits and/or other evidence submitted in support of a defendant's motion to dismiss conclusively establish that jurisdiction is lacking, and the plaintiff fails to undermine this conclusion with counteraffidavits ․ or other evidence, the trial court may dismiss the action without further proceedings ․ If, however, the defendant submits either no proof to rebut the plaintiff's jurisdictional allegations ․ or only evidence that fails to call those allegations into question ․;  the plaintiff need not supply counteraffidavits or other evidence to support the complaint, but may rest on the jurisdictional allegations therein ․ Finally, where a jurisdictional determination is dependent on the resolution of a critical factual dispute, it cannot be decided on a motion to dismiss in the absence of an evidentiary hearing to establish jurisdictional facts.”  (Citations omitted;  emphasis in original;  footnote omitted;  internal quotation marks omitted.)  Conboy v. State, 292 Conn. 642, 651–52, 974 A.2d 669 (2009).

“[A] challenge to the jurisdiction of the court presents a question of law ․” Ryan v. Cerullo, 282 Conn. 109, 118, 918 A.2d 867 (2007).

III

Discussion

“Mootness is a question of justiciability that must be determined as a threshold matter because it implicates [the] court's subject matter jurisdiction.”  State v. Milner, 309 Conn. 744, 751 (2013).⁴  “Justiciability requires (1) that there be an actual controversy between or among the parties to the dispute ․ (2) that the interests of the parties be adverse ․ (3) that the matter in controversy be capable of being adjudicated by judicial power ․ and (4) that the determination of the controversy will result in practical relief to the complainant.”  (Internal quotation marks omitted.)  State v. Preston, 286 Conn. 367, 373–74, 944 A.2d 276 (2008).

“[T]he requirement of an actual controversy ․ is premised upon the notion that courts are called upon to determine existing controversies, and thus may not be used as a vehicle to obtain advisory judicial opinions on points of law ․ Moreover, [a]n actual controversy must exist not only at the time the [action is commenced], but also throughout [its] pendency ․ When, during the pendency of an [action], events have occurred that preclude [a] ․ court from granting any practical relief through its disposition of the merits, a case has become moot ․” (Internal quotation marks omitted.)  State v. Milner, supra, 309 Conn. 751.

“A writ of mandamus will be granted only where the plaintiff has a clear legal right to have done that which he seeks ․ The writ is proper only when [1] the law imposes on the party against whom the writ would run a duty the performance of which is mandatory and not discretionary;  [2] the party applying for the writ has a clear legal right to have the duty performed;  and [3] there is no other specific adequate remedy.”  (Internal quotation marks omitted.).   Butts v. Bysiewicz, 298 Conn. 665, 669 n.3, 5 A.3d 932 (2010).

As the Supreme Court earlier explained, “[i]f the right sought to be enforced is or has become a mere abstract right, the enforcement of which will be of no substantial or practical benefit to the petitioner, the writ will not issue though otherwise the applicant would be entitled to it ․ [I]t has been generally held that it will be denied where, by reason of events occurring subsequent to the commencement of the proceedings or because of lapse of time, the relief sought would be nugatory or unavailing.”  (Citations omitted;  internal quotation marks omitted.)  Pape v. MeKinney, 170 Conn. 588, 596, 368 A.2d 28 (1976).

In their demand for relief, the plaintiffs seek (1) a preliminary injunction prohibiting the defendants from eliminating the positions of police dispatcher until and unless the defendants comply with the Town Charter by calling a special Town meeting concerning the outsourcing of those positions;  and (2) a writ of mandamus ordering the defendants to hold such a meeting “so the plaintiffs and the other residents, taxpayers, and legally interested parties will be afforded the due process guaranteed by the Charter.”

In support of their argument concerning mootness, the defendants assert that, in September 2013, the Town switched its dispatch of all 911 calls to the regional entity, Northwest, rendering the plaintiffs' complaint moot, since they can derive no benefit from a court order that a special Town meeting be convened.   They contend that there is no provision in the Town Charter which would allow a special Town meeting to rescind the contract and override the authority of the Board of Selectmen to enter into a regional endeavor with other municipalities, two powers which the Charter vests solely with the Board of Selectmen.⁵

As discussed above, the plaintiffs allege in their complaint, paragraph 6, that, on December 3, 2012, the defendants voted to outsource the public safety responsibilities of the police dispatchers to an outside agency, and, as a result, their jobs as in-town police dispatchers were eliminated.   They further allege that, after implementation in September 2013, there will be no police dispatchers located physically in Middlebury.   See complaint, ¶ 6.

The plaintiffs acknowledge that the outsourcing has occurred.   In his September 23, 2013 affidavit, paragraph 7, Roy states that “[r]ecently the Board of Selectmen ․ outsourced 911 calls from coming into the in-town dispatch center.   That operational move coincides with the Selectmen's plan to remove physically any in-town emergency dispatch presence in the Town of Middlebury.”   In their objection to the motion to dismiss (# 106), page 3, the plaintiffs state that the defendants already have removed the 911 emergency dispatch services out of the Town.

The plaintiffs assert that the court still has the power to grant practical relief by ordering the defendants to abide by the Town's Charter and ordering a special Town meeting allowing the citizens to participate in their government.   They contend that the Charter does not prohibit discussion of the outsourcing of emergency dispatch services at a special Town meeting.

In this context, since the Town of Middlebury is governed by a municipal charter, the plaintiffs' reliance on Morris v. Congdon, 277 Conn. 565, 893 A.2d 413 (2006), where the court concluded that the elimination of the position of town planner was a proper purpose for a town meeting, is misplaced.   In Morris v. Congdon, the Supreme Court concluded that, since the Town of Preston had no charter, basic policy decisions were within the town meeting's authority, and that although the board of selectmen, as an agent of the town meeting, had authority to create or eliminate a municipal position when the town meeting is silent, the town meeting had the primary authority to create or eliminate positions and the board was subject to that authority.   Accordingly, the board was required to warn a special town meeting in order to consider and act upon a motion to eliminate the position of town planner.   See id., 566–67.

The Morris v. Congdon court repeatedly premised its decision on the absence of a town charter, noting that “[t]he town in the present case does not have a charter or home rule ordinance, and its powers were not granted by a special act.   Thus, its powers are delineated by the General Statutes.”  Id., 570.   “[I]n the absence of any charter, ordinance, or statute to the contrary, basic policy decisions are within the town meeting's authority while the selectmen have authority over the administration of those decisions.”  Id., 575.

The Morris v. Congdon court also contrasted the municipal governance structure in the Town of Preston with that discussed in Windham Taxpayer's Assn. v. Board of Selectmen, 234 Conn. 513, 662 A.2d 1281 (1995).   See Morris v. Congdon, supra, 277 Conn. 576–77.   Similar to the petitions here, which seek to reverse the Selectmen's decision to participate in a regional system and to rescind the contract authorized by the Selectmen which outsources dispatcher positions, in Windham, “town residents requested a special town meeting for the purpose of setting the time and place of a townwide referendum to rescind an appropriation of funding for a new school.  Id., 515–17.”  Morris v. Congdon, supra, 277 Conn. 576.

The Morris court stated that, in the contrasting municipal setting in Windham, “a writ of mandamus could not issue because the selectmen had discretion to determine whether to call a special town meeting ․ [T]he selectmen's discretion emanated from Windham's town charter, which vested the legislative power in the board of selectmen ․ The charter also limited the issues on which the town meeting was authorized to act ․ Because Preston does not have a town charter, special act, or ordinance granting similar discretion to its selectmen, Windham [was] ․ inapposite ․” (Citations omitted.)   Morris v. Congdon, supra, 277 Conn. 576–77.   Here since Middlebury does have a town charter, the Supreme Court's analysis in Windham is applicable.

Under the Home Rule Act, General Statutes §§ 7–187 et seq. (the act), “municipalities have the power to adopt a charter to serve as the organic law of that municipality ․ It is well established that a [town'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.”   (Citations omitted;  footnote omitted.)  Windham Taxpayer's Assn. v. Board of Selectmen, supra, 234 Conn. 529.

There, the Supreme Court concluded, “in matters primarily concerning local matters, the provisions of the town charter control ․ [T]he extent of town meeting involvement is a matter of local concern ․” Windham Taxpayer's Assn. v. Board of Selectmen, supra, 234 Conn. 532.   The court also reiterated that the “extent of the use of the town meeting form of government is a matter of purely local concern.”  Id., 537.

The Windham court found that “[t]he language of the act unambiguously states that a town charter may prescribe the form of legislative body, provided that such provisions conform to one of the four enumerated types listed in § 7–193(a)(1).   Furthermore, the act states that, in a town such as Windham that has chosen a combination of legislative bodies, ‘the body having the greater number of members shall have the power to adopt the annual budget and shall have such other powers as the charter prescribes ․ ‘ (Emphasis in original.)  Id., 533.   Thus, “if a municipality chooses to do so, it may limit the involvement of the town meeting to only the adoption of the budget.”  Id., 533.   It is evident that in Middlebury, as in Windham, “the town meeting is the body with the greater number of members.”  Id.

Where the court “construe[s] provisions of the town charter, [it] appl[ies] principles of statutory interpretation.”  Bateson v. Weddle, 306 Conn. 1, 14, 48 A.3d 652 (2012).

Section 901 of the Middlebury Charter provides that “[t]he Town meeting shall be the legislative body of the Town, except as specifically provided in this Charter.”   The Charter also provides that the Selectmen have the power to recommend to the Town meeting the enactment, amendment, or repeal of ordinances.   See Charter, § 304D, page 16.   As in the Windham charter, the Middlebury Charter “prescribes those instances requiring a town meeting.”   Windham Taxpayer's Assn. v. Board of Selectmen, supra, 234 Conn. 533.

Middlebury's Charter, Section 904, pages 47–48, entitled “Actions Requiring Town Meetings,” states that “Action shall be taken at Town Meetings only when required by this Charter or by the General Statutes, including but not limited to the following actions ․” Included in the list of actions, in paragraph E, is “Any matter deemed by the Board of Selectmen to be of sufficient importance to the Town.” Thus, as in Windham, the Charter limits the issues on which the Town meeting is authorized to act.   Not included within these listed actions is the authority to rescind contracts for services entered into by the Selectmen or to overturn a decision made by the Selectmen to join with another political subdivision to provide services and facilities.

In contrast, the Charter explicitly empowers only the Selectmen to enter into contracts for services or to join with another political subdivision to provide services and facilities.   Section 304F, page 17, provides, “Except as otherwise provided in this Charter or the law of the State of Connecticut, the Board of Selectmen shall have the sole power as follows:  ․ (4) To enter into contracts for any services and to purchase or contract to purchase any supplies, materials, equipment and other commodities required by any Town agency;  (5) To join with any political subdivisions to provide services and facilities in accordance with the acceptable provisions of the Connecticut General Statutes.”  (Emphasis added.)

The Charter states, generally, in Section 902A, page 45, that “Special Town Meetings may be called by the Board of Selectmen at any time for any proper purpose.”   Concerning petitions for special meetings, the Charter provides, generally, in Section 902B, also at page 45, that “The Board of Selectmen shall call a special Town meeting for any proper purpose upon the filing of a petition for such a meeting,” provided that certain requirements are met.

As in Windham, Middlebury's “town charter enumerates those situations in which town meeting approval is required.”  Windham Taxpayer's Assn. v. Board of Selectmen, supra, 234 Conn. 537.   The Charter does not authorize the Town meeting to discuss or consider either rescinding a contract entered into by the Selectmen or overturning a decision by the Selectmen to join with any political subdivisions to provide services.  “Had the town wished to require a town vote upon petition to [do either], such a provision could have been included in the charter.   Similarly, had the town wished to require a town meeting upon petition by a certain number of people, such provision also could have been included in the charter.”  Windham Taxpayer's Assn. v. Board of Selectmen, supra, 234 Conn. 537–38.

Instead, the Charter only generally requires holding a special town meeting upon petition for a “proper purpose.”   Had the Town wanted to allow the Town meeting to rescind contracts or authorize it to overrule the Selectmen's decision to join with other towns to provide services in Middlebury through a regional agreement, it could have specifically provided therefor.   Where it has expressly provided otherwise, that the Board of Selectmen has the “sole power” to do those specific things, those authorizations take precedence.   See Tomlinson v. Tomlinson, 305 Conn. 529, 552–53, 46 A.3d 112 (2012).   The Charter's silence as to authority for the Town meeting to so act is evidence of the Town's intent not to imbue the Town meeting with such authority.   See State v. Orr, 291 Conn. 642, 656–57, 969 A.2d 750 (2009).

Under these circumstances, since the Town meeting would not have authority to act, and since events occurring subsequent to the presentation of the petitions have significantly changed the circumstances, there would be no purpose in a writ of mandamus ordering a Town meeting for the purpose of discussing the outsourcing of the police dispatcher functions.   As discussed above, subsequent to the presentation of the petitions, after a public hearing, at the May 8, 2013 budget referendum, the Town's voters approved the budget, which set funding for 911 dispatch services based on the Town's contract with Northwest, and the Town's contract with Northwest has been implemented.

The court does not engage in academic exercises.   See State v. Javarjian, 307 Conn. 559, 565–67, 58 A.3d 243 (2012).   Due process is not implicated where the Town meeting forum cannot provide a meaningful opportunity to be heard.   See Thalheim v. Greenwich, 256 Conn. 628, 649, 775 A.2d 947 (2001).   The injunctive relief sought, prohibiting the defendants from eliminating the positions of police dispatcher until and unless the defendants comply with the Charter by calling a special Town meeting is similarly unavailing.   As discussed above, the Town meeting would lack the authority to act.

No practical relief is available to the plaintiffs.   See State v. Preston, supra, 286 Conn. 373–74.   This matter is not justiciable and is moot.   The court lacks subject matter jurisdiction.   In view of this determination, the court need not consider the parties' arguments concerning exhaustion of administrative remedies.

CONCLUSION

Based on the foregoing reasons, the defendants' motion to dismiss the plaintiffs' complaint is granted.   It is so ordered.

BY THE COURT

ROBERT B. SHAPIRO

JUDGE OF THE SUPERIOR COURT

FOOTNOTES

FN1. Since, as discussed below, the mootness issue is dispositive, the court need not discuss the parties' contentions concerning the exhaustion of administrative remedies..  FN1. Since, as discussed below, the mootness issue is dispositive, the court need not discuss the parties' contentions concerning the exhaustion of administrative remedies.

FN2. The Town's Charter, Section 702C, subparagraph 3 (pages 34–35), provides that “[a]t least four (4) weeks prior to the annual budget referendum ․ the Board of Finance shall hold a public hearing on the proposed budget at which all persons shall have the opportunity to be heard regarding the appropriations proposed for the ensuing year.”.  FN2. The Town's Charter, Section 702C, subparagraph 3 (pages 34–35), provides that “[a]t least four (4) weeks prior to the annual budget referendum ․ the Board of Finance shall hold a public hearing on the proposed budget at which all persons shall have the opportunity to be heard regarding the appropriations proposed for the ensuing year.”

FN3. The plaintiffs cross examined Hutvagner at the October 1, 2013 evidentiary hearing held by the court..  FN3. The plaintiffs cross examined Hutvagner at the October 1, 2013 evidentiary hearing held by the court.

FN4. The court declines to find, as contended by the plaintiffs, that the defendants' arguments have been abandoned due to inadequate briefing..  FN4. The court declines to find, as contended by the plaintiffs, that the defendants' arguments have been abandoned due to inadequate briefing.

FN5. Since, as discussed below, the court concludes that the mootness issue is dispositive for other reasons, the court need not consider the defendants' arguments concerning the form of the petitions..  FN5. Since, as discussed below, the court concludes that the mootness issue is dispositive for other reasons, the court need not consider the defendants' arguments concerning the form of the petitions.

Shapiro, Robert B., J.