Anna P. Neumon et al. v. John L. Benigni et al. (2014)

MEMORANDUM OF DECISION RE MOTION TO DISMISS # 106

On December 24, 2013, the plaintiffs, Anna Neumon and Martin Horsky, commenced this quo warranto action by service of process on the defendants, John L. Benigni, David J. Salafia, Philip A. Mangiaracina, David Lowell, and William Kroll.   The amended complaint was filed on January 22, 2014.   Therein, the plaintiffs allege the following facts.   The plaintiffs are residents and taxpayers of the city of Meriden and are registered to vote and did so vote in the municipal elections that took place on November 5, 2013.   As a result of the municipal elections that took place on November 5, 2013, Manual A. Santos was elected as mayor of the city of Meriden.   Mayor Santos was sworn into office, thereby succeeding the former city mayor, Michael Rohde.   The charter of the city of Meriden vests in the mayor the power of recommending individuals for appointment to positions within the appointing power of the Meriden city council.   On the evening of December 2, 2013, the city council held a meeting at approximately 6:00 P.M., which was neither convened nor presided over by Mayor Santos.   At the meeting, Benigni was appointed to serve on the city's School Building Committee, Salafia was appointed to serve on the city's Building Code of Appeals, Mangiaracina was appointed to serve on the city's Human Rights Advisory Board, and Kroll was appointed to serve on the city's Municipal Pension Board.   On December 2, 2013, Mayor Santos convened and presided over a different meeting, which commenced at approximately 7:00 P.M. At this meeting, Lowell was appointed to the city's Economic Development, Housing and Zoning Standing Committee.   None of these individuals appointed on December 2, 2013 were recommended by Mayor Santos, even though the charter would mandate the mayor's recommendation.   Based on the foregoing facts, the plaintiffs claim that none of the aforementioned appointees have been properly appointed under the city charter and therefore that they should be ordered to vacate their appointed positions, unless each appointee can prove their proper claim to each office.   The plaintiffs also seek to have vacated any and all decisions and actions made by the appointees during their “illegal” terms.   The plaintiffs finally ask the court to award as relief their costs for bringing the instant action.

On January 10, 2014, the defendant, Lowell, moved to dismiss the action on the ground that the court lacks subject matter jurisdiction to entertain the claim against him.¹  In his accompanying memorandum of law, the defendant argues specifically that in order to maintain an action in quo warranto, the plaintiff must be challenging a party's title to a public office and that, here, Lowell was not appointed to a public office.   On January 22, 2014, the plaintiffs filed a memorandum of law in opposition to the defendant's motion wherein the plaintiffs argue that Lowell's position on the Economic Development, Housing and Zoning Standing Committee constitutes a public office and therefore that the court has subject matter jurisdiction over this claim.   Argument was heard on this issue on January 29, 2014.

“[A] motion to dismiss ․ properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court.”  (Internal quotation marks omitted.)  Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013).  “A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.”  (Internal quotation marks omitted.)  Dayner v. Archdiocese of Hartford, 301 Conn. 759, 774, 23 A.3d 1192 (2012).

General Statutes § 52–491 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.”  “Historically, the writ of quo warranto originated as a device to require [Norman kings'] barons to justify their claims to power or to abandon them ․ Today, unless otherwise provided by statute, a quo warranto action is the exclusive method of trying the title to an office ․ It lie[s] to prevent the usurpation of a public office or franchise ․ by placing the burden on the defendant to prove lawful entitlement to a particular office ․ and oust[ing] individuals illegally occupying public offices ․ The purpose of the proceeding, therefore, is to test the actual right to the office and not merely a use under color of right ․ In other words, in a quo warranto proceeding, a plaintiff may contest an individual's right to hold an office;  however, a challenge to the manner in which a lawful incumbent is exercising the powers, privileges and duties pertaining to an office exceeds the scope of such an action.   Thus, the writ of quo warranto developed and has continued as a limited and extraordinary remedy ․ to test who the lawful public official is.”  (Citations omitted;  emphasis in original;  internal quotation marks omitted.)  Bateson v. Weddle, 306 Conn. 1, 10–11, 48 A.3d 652 (2012).

“In a quo warranto proceeding, the title to be challenged must be a public office ․ Quo warranto may not be used to challenge the appointment of a mere government employee ․ [State v. Brethauer, 83 Conn. 143, 75 A. 705 (1910) ] established 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 legislation;  and (2) its incumbent, by virtue of his incumbency, must be invested with some portion of the sovereign power which he is to exercise for the benefit of the public.”  (Citations omitted.)  New Haven Firebird Society v. Board of Fire Commissioners, 219 Conn. 432, 436, 593 A.2d 1383 (1991).   In other words, “[a]ll that is required is that the powers and duties of the position have their source in sovereign authority and that such position be invested with some portion of such sovereign power to be expended for the benefit of the public.”  Carleton v. Civil Service Commission, 10 Conn.App. 209, 213, 522 A.2d 825 (1987).

In order to evaluate whether the defendant's position on the Economic Development, Housing and Zoning Standing Committee constitutes a public office within the meaning of the quo warranto statute, the court must look to the source and the nature of the position and evaluate the powers associated therewith.   Section C7–2 of the Meriden city charter is entitled “Existing or proposed boards, commissioners or departments” and provides in relevant part:  “The City Council shall have the power to create, establish or eliminate, after public hearing, all boards, commissions and departments, except the hereinafter-listed boards, commissions and departments and those mandated by state statute, as it deems necessary for the efficient, orderly, economical and coordinated operation of the municipal government, by an affirmative vote of 2/3 of its full membership.”   Meriden Charter § C7–2. Section C7–2 then provides that the following boards, commissions, and departments cannot be consolidated or eliminated:  the public utilities commission, the department of law, the police department, the fire department, the city clerk, the board of assessment appeals, and the board of ethics.  Id. Pursuant to its authority in § C7–2, the city counsel expressly created additional standing committees.   These standing committees are enumerated in the rules of order of the city council.   Rule 6 of the rules of order of the city council provides in relevant part:  “The following standing committees shall be appointed, and chairs of said committees elected by the affirmative vote of a majority of the members of the City Council then and there present and voting.”   Rules of Order of the Meriden City Council, Rule 6. The rules then list those standing committees as follows:  Finance, Economic Development, Housing and Zoning, Public Safety, Public Works and Parks and Recreation, and Human Services.  Id. The rules further provide that “[a]ll members of the City Council shall be specifically assigned to serve on one or more of the Standing Committees.   In addition, all members by virtue of their office, shall be members of all other Standing Committees and may participate in the proceedings of such committees without the privilege of voting and their presence a meetings shall not be counted as a quorum.”  Id.

Section C3–3(J) of the Meriden city charter governs the appointment process and provides in relevant part:  “The Mayor shall recommend any and all appointments to officers or positions within the appointing power of the City Council (except as to chairpersons of the standing committees to the City Council) for approval.   The City Council may, within its next two regular meetings after submission of a recommendation by the Mayor, reject said recommendation by majority vote of the entire membership except as herein otherwise specified, in failure of which said recommendation shall be deemed confirmed.”   Meriden Charter § C3–3(J).

In sum, the city charter specifically provides that the city council has power to create additional commissions as it deems necessary and, acting pursuant to this authority, the rules of city council were promulgated, which expressly establish the Economic Development, Housing and Zoning Standing Committee and provide that this committee shall be appointed.   Meriden Charter § C7–2;  Rules of Order of the Meriden City Council, Rule 6. Based upon the foregoing, this court is satisfied that the defendant's position on the Economic Development, Housing and Zoning Standing Committee is grounded in a sovereign authority speaking through legislation, namely, the Meriden city charter and the rules of order of the city council.

Next, the court must evaluate whether the defendant, by virtue of his position on the Economic Development, Housing and Zoning Standing Committee, is vested with some portion of the sovereign power which he is to exercise for the benefit of the public.   At the hearing held on January 29, 2014, the parties to this case appeared and represented to the court that the Economic Development, Housing and Zoning Standing Committee's function is to hold public hearings and to make recommendations to the city council.   The parties represented that the decisions made by the committee are submitted as mere recommendations to the city council and are not binding on the city council.   Based upon these representations and the Meriden's City Council Rules of Order,² it is clear that the defendant's power, even when exercised, does not bind the city council.   It is with these considerations in mind that this court concludes that the defendant does not, by virtue of his incumbency, have the ability to actually exercise sovereign power for the benefit of the public.   Without this power, it cannot be said that the defendant holds a public office within the meaning of the quo warranto statute.

The plaintiffs rely heavily upon Biafore v. City Council, Superior Court, judicial district of New Haven, Docket No. CV–99–0266160 (February 19, 2002, Winslow, J.) (31 Conn. L. Rptr. 446), to bolster their position that the defendant is a public official.   The plaintiffs note that in Biafore, the Meriden city council argued that a chairperson of the Economic Development, Housing and Zoning Committee of the Meriden city council was a “public official” and therefore contend that this eviscerates the position of the defendant in the present case.   The court, however, finds this argument unavailing.   In Biafore, the plaintiff appealed the city of Meriden's decision to amend its zoning ordinances on the ground that the city council's decision failed to comply with § 213–61 of the Meriden zoning regulations, which provided in relevant part that “[a]ny such change, amendment, alteration, rezoning or establishment ․ may be initiated by ․ (B) Where the interests of the city are concerned, a petition by a proper official shall be filed in duplicate with the City Clerk.”  (Emphasis added.)   Biafore v. City Council, supra, 446, 448 n.3. The court in Biafore was tasked with determining whether a petition authored by the chairperson of the Economic Development, Housing and Zoning Committee would meet the requirements of § 213–61 of the Meriden zoning regulations and ultimately concluded that the petition was sufficient.   The court in Biafore was specifically confronted with the issue of whether the “proper official” requirement under § 213–61 was satisfied, an issue which is entirely distinct from whether an individual serving on the Economic Development, Housing and Zoning Committee would be a “public official” within the meaning of the quo warranto statute.   Inasmuch as these issues are inapposite, the court finds this case unpersuasive and irrelevant to the issue presently before this court.

Based on the foregoing, the court finds that the defendant, Lowell, is not a public official within the meaning of the quo warranto statute and therefore that this court lacks subject matter jurisdiction over the claim as to the defendant, Lowell.   The action as to Lowell is therefore dismissed.

BY THE COURT

Jack W. Fischer, Judge

FOOTNOTES

FN1. Lowell will hereinafter be referred to as the defendant, inasmuch as the other defendants are not the subject to the motion presently before the court..  FN1. Lowell will hereinafter be referred to as the defendant, inasmuch as the other defendants are not the subject to the motion presently before the court.

FN2. Rule 7 of the rules of order the city council provides:  “All committees shall submit their reports in writing, accompanied by the form of such action or order as they may recommend to the City Council.   Each such report shall set forth the committee members in favor and opposed to such action or order and an explanatory note of the purpose of such proposed action or order.   Each such committee report shall have attached all pertinent information submitted to the committee.   A summary of the subject matter of each such committee report shall appear on the regular agenda of each Council meeting at which such report shall be acted on.   Upon reading of a report, if no motion is made, the question shall always be upon the adoption of the order or action reported by the Committee.   Actions or orders reported by a committee may be recommitted, together with the report, at any time before their passage or rejection.”  (Emphasis added.)   Rules of Order of the Meriden City Council, Rule 7..  FN2. Rule 7 of the rules of order the city council provides:  “All committees shall submit their reports in writing, accompanied by the form of such action or order as they may recommend to the City Council.   Each such report shall set forth the committee members in favor and opposed to such action or order and an explanatory note of the purpose of such proposed action or order.   Each such committee report shall have attached all pertinent information submitted to the committee.   A summary of the subject matter of each such committee report shall appear on the regular agenda of each Council meeting at which such report shall be acted on.   Upon reading of a report, if no motion is made, the question shall always be upon the adoption of the order or action reported by the Committee.   Actions or orders reported by a committee may be recommitted, together with the report, at any time before their passage or rejection.”  (Emphasis added.)   Rules of Order of the Meriden City Council, Rule 7.

Fischer, Jack W., J.