Civil Service Com'n v. Pekrul

• Decision Date: 18 October 1989
• Docket Number: 087653,Nos. 087414,s. 087414
• Citation: 571 A.2d 715,41 Conn.Supp. 302
• Court: Connecticut Superior Court
• Parties: CIVIL SERVICE COMMISSION et al. v. Edward PEKRUL et al. CIVIL SERVICE COMMISSION et al. v. BOARD OF POLICE COMMISSIONERS.

Page 715

571 A.2d 715

41 Conn.Supp. 302

CIVIL SERVICE COMMISSION et al. v. Edward PEKRUL et al.

CIVIL SERVICE COMMISSION et al. v. BOARD OF POLICE COMMISSIONERS.

Nos. 087414, 087653.

Superior Court of Connecticut,

Judicial District of Waterbury.

Oct. 18, 1989.

John M. Gesmonde, Hamden, for plaintiffs in the first case.

Dennis M. Buckley, Waterbury, for defendants in the first case.

John M. Gesmonde, Hamden, for named plaintiff in the second case.

George Tzepos, Waterbury, for plaintiff Edmund Jayaraj in the second case.

Dennis M. Buckley, Waterbury, for defendant in the second case.

BARNETT, Judge.

Before the court are motions to dismiss ¹ the above-captioned cases, which are actions in quo warranto and mandamus respectively. In both cases, the plaintiffs are the civil service commission of the city of Waterbury, Edmund Jayaraj, as administrator of the commission and director of personnel of the city of Waterbury, and Jayaraj, individually, as a Waterbury resident and taxpayer.

The defendants in the quo warranto action (No. 087414) are Edward Pekrul, Joseph Pesce, Edward Stephens, James Clary and Phillip Rinaldi, five police officers, who, the plaintiffs claim, have been illegally appointed to the positions of detective/plainclothesman and whose ousters from those positions are sought.

In the mandamus action (No. 087653), the sole defendant is the board of police commissioners of the city of Waterbury, the authority that appointed the five quo warranto defendants to their respective posts. ² The mandamus action seeks to compel the board to appoint Pesce and four other policemen to the position of detective/plainclothesman on the basis of higher ratings on the civil service eligibility list. ³ Under Connecticut law, both actions are necessary for the accomplishment of the plaintiffs' purposes: quo warranto to remove the incumbents and mandamus to secure the appointment of the plaintiffs' nominees. Beccia v. Waterbury, 185 Conn. 445, 456-57, 441 A.2d 131 (1981); State ex rel. Comstock v. Hempstead, 83 Conn. 554, 559, 78 A. 442 (1910); Duane v. McDonald, 41 Conn. 517, 521-22 (1874).

For the purpose of ruling on the motions, the court must accept as true all material factual allegations and construe them most favorably to the plaintiffs. Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975); American Laundry Machinery, Inc. v. State, 190 Conn. 212, 217, 459 A.2d 1031 (1983). The following items are therefore deemed admitted: The status of the plaintiffs; the submission of a personnel requisition by the superintendent of police to fill five vacant positions of detective/plainclothesman; the subsequent authorization of the personnel requisition by Waterbury's mayor and budget director; the forwarding of the requisition to the plaintiff Edmund Jayaraj as director of personnel; the certification by Jayaraj, as director of personnel, of the five highest-rated candidates on the eligibility list; and, the action of the board of police commissioners in filling the vacant positions from the eligibility list but, with the exception of Pesce, in not selecting the five highest-rated candidates as certified by Jayaraj.

Identical claims for dismissal have been made in both cases. The defendants contend that there is (1) a lack of subject matter jurisdiction, (2) a lack of in personam jurisdiction, (3) an insufficiency of process, and, (4) an insufficiency of service of process.

The defendants' claims concerning lack of in personam jurisdiction, insufficiency of process and insufficiency in the service of process can be treated summarily. Although matters of this nature are proper subjects of a motion to dismiss, each of them is considered to have been waived unless asserted within thirty days after the filing of an appearance. Practice Book §§ 142, 143 and 144.

Appearances for the five defendants in the quo warranto action and for the defendant board of police commissioners in the mandamus action were filed on October 31, 1988. The motions to dismiss, however, were not filed until June 16, 1989. A denial, on the basis of the above Practice Book sections, of the defendants' contentions other than the claim of lack of subject matter jurisdiction is proper. As a matter of record, requested extensions of time had expired before the motions to dismiss were filed. ⁴

The claim of an absence of subject matter jurisdiction cannot be waived and must be considered. Practice Book § 145. As presented, the defendants' claim seemingly had two aspects, justiciability and standing, each of which merits a separate discussion.

In asserting a lack of justiciability, the defendants claim that the quo warranto and mandamus actions do not present live controversies that are capable of resolution through the judicial process. See Flast v. Cohen, 392 U.S. 83, 94-95, 88 S.Ct. 1942, 1949, 20 L.Ed.2d 947 (1968). The premise here is that the city of Waterbury is constituted as "one body politic and corporate" and that the civil service commission, Jayaraj as director of personnel, and the board of police commissioners, are all agents of the city who, for that reason, are incapable of suing each other. In sum, a lack of justiciability is advocated on the ground that in the present cases, the city, in effect, is litigating against itself.

With respect to the issue of justiciability, the defendants' "suing oneself" theory cannot be regarded seriously. In Ducharme v. Putnam, 161 Conn. 135, 138-39, 285 A.2d 318 (1971), the Supreme Court noted with no apparent disapproval that in United States v. Interstate Commerce Commission, 337 U.S. 426, 69 S.Ct. 1410, 93 L.Ed. 1451 (1949), the federal government was permitted to sue itself. "[C]ourts must look behind names that symbolize the parties to determine whether a justiciable case or controversy is presented." Id., at 430, 69 S.Ct. at 1413. The question to be asked is whether the action is one that is traditionally submitted to litigation, and, in the two present cases, where the writs of quo warranto and mandamus are being utilized in their historic functions, that question must be answered affirmatively. Moreover, the "suing oneself" theory does not reach the plaintiff Jayaraj as a taxpayer, or the five individual quo warranto defendants.

Standing, the other prong of the defendants' attack, is, when questioned, a component of subject matter jurisdiction. Claydon v. Finizie, 7 Conn. App. 522, 526, 508 A.2d 845 (1986). In the determination of standing the primary focus is on whether the party bringing the complaint, is the proper party to request an adjudication of the issue and, not whether the issue itself is justiciable. Flast v. Cohen, supra, 392 U.S. at 99-100, 88 S.Ct. at 1952. Standing embodies the well recognized rule "that a person is not 'entitled to set the machinery of the courts in operation except to obtain redress for an injury he has suffered or to prevent an injury he may suffer, either in an individual or a representative capacity.' " Nye v. Marcus, 198 Conn. 138, 141-42, 502 A.2d 869 (1985).

Standing can be elusive in application. Flast v. Cohen, supra, 392 U.S. at 98-99, 88 S.Ct. at 1951-1952. As a concept, however, standing has been most often described by the courts in the following terms: " '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 nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously presented.... These two objectives are ordinarily held to have been met when a complainant makes a colorable claim of [a] direct injury he has suffered or is likely to suffer, in an individual or representative capacity.' " (Citations omitted.) Board of Pardons v. Freedom of Information Commission, 210 Conn. 646, 648-49, 556 A.2d 1020 (1989); Maloney v. Pac, 183 Conn. 313, 320-21, 439 A.2d 349 (1981); see University of Connecticut Chapter, AAUP v. Governor, 200 Conn. 386, 389, 512 A.2d 152 (1986).

Although the two present cases are intertwined as to the desired results, each of them has its own prerequisites. Further, the plaintiffs are acting in different capacities. To determine whether standing exists, the complaints and the status of each plaintiff in relation to them must be examined separately.

A quo warranto action is the procedure to challenge a person's de jure title to public office. Cheshire v. McKenney, 182 Conn. 253, 256, 438 A.2d 88 (1980). Quo warranto is not available to test the appointment of a mere government employee. Carleton v. Civil Service Commission, 10 Conn.App. 209, 212, 522 A.2d 825 (1987). Connecticut decisions have uniformly characterized police officers, without regard to rank, as public officers. Bartlett v. Rockville, 150 Conn. 428, 430, 190 A.2d 690 (1963); McKeithen v. Stamford, 149 Conn. 619, 622, 183 A.2d 280 (1962); McDermott v. New Haven, 107 Conn. 451, 453, 140 A. 826 (1928); McDonald v. New Haven, 94 Conn. 403, 411, 109 A. 176 (1920).

By established case law, Jayaraj, as a Waterbury taxpayer, has standing to bring the quo warranto action. State ex rel. City of Waterbury v. Martin, 46 Conn. 479, 482 (1878); Carleton v. Civil Service Commission, supra, 10 Conn.App. at 216, 522 A.2d 825. The rationale for standing is that a taxpayer ⁵ 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. Jayaraj's standing as a taxpayer means that the quo warranto action will go forward irrespective of rulings on the standing of the civil service commission or on Jayaraj as the administrator of the commission and director of personnel.

Unlike quo warranto, however, taxpayer status does not automatically...