Co. v. Mccarthy, CV-09-4043592-S.
Decision Date | 23 April 2010 |
Docket Number | No. CV-09-4043592-S.,CV-09-4043592-S. |
Court | Connecticut Superior Court |
Parties | A. GALLO AND COMPANY et al. v. Gina McCARTHY, Commissioner of Environmental Protection, et al. |
OPINION TEXT STARTS HERE
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James K. Robertson, Jr., Waterbury, and David S. Hardy, New Haven, for the plaintiffs.
Richard Blumenthal, attorney general, and Robert W. Clark, assistant attorney general, for the defendants.
Garrett S. Flynn, Patricia A. Millett, pro hac vice, and Kevin R. Amer, pro hac vice, for the American Beverage Association as amicus curiae.
In this action, the plaintiffs seek declaratory relief and money damages. The plaintiffs claim that certain provisions of Public Acts 2009, No. 09-1 (P.A. 09-1), effected a retroactive taking of their property in violation of the fifth and fourteenth amendments to the United States constitution and article first, § 11, of the constitution of Connecticut. The property at issue is unclaimed beverage container deposits. The plaintiffs have moved for summary judgment on liability, and the defendants have filed a cross motion for summary judgment Additionally, the American Beverage Association has filed an amicus brief in support of the plaintiffs' motion and in opposition to the defendants' cross motion.
The plaintiffs initially sought a temporary injunction prohibiting the defendants from enforcing certain portions of P.A. 09-1. See A. Gallo & Co. v. McCarthy, Superior Court, judicial district of Hartford, Docket No. CV-09-4043592-S, 2009 WL 1532228 (May 5, 2009) ( Aurigemma, J.). At the hearing on the temporary injunction, before Judge Aurigemma, the parties jointly submitted a proposed finding of facts that were not in dispute. The application for the temporary injunction was denied. Id. The parties have asked this court to rely on the facts contained in the ruling on the temporary injunction. Accordingly, Judge Aurigemma's thorough discussion of the stipulated facts, which are set forth as follows.
“The plaintiffs, A. Gallo & Company, Allan S. Goodman, Inc., Dichello Distributors, Inc., Dwan & Company, Inc., F & F Distributors, Inc., Franklin Distributors, Inc., G & G Beverage Distributors, Inc., Hartford Distributors, Inc., Levine Distributing Company, Inc., Northeast Beverage Corporation of Connecticut and Star Distributors, Inc., are Connecticut corporations and at all relevant times were distributors of beer in the state of Connecticut. The plaintiff Pepsi Cola Newburgh Bottling Company, Inc., is a New York corporation and at all relevant times was a distributor of soft drinks in the state of Connecticut.
“The defendant Gina McCarthy is the commissioner of the department of environmental protection (department). Commissioner McCarthy and the department are charged with administering and enforcing General Statutes § 22a-243 et seq., Public Acts [2008, No. 08-1 (P.A. 08-1) ], and P.A. 09-1, and McCarthy is responsible for depositing the payment appropriated thereby in the state's general fund.
“The state is facing a significant economic crisis. On January 20, 2009, the [defendant Governor M. Jodi Rell] 1 announced that the estimated budget deficit for the current fiscal year ending June 30, 2009, was at nearly $922 million. On April 20, 2009, the governor announced that the 2009 budget deficit had increased to approximately $1.056 billion and that the estimated budget deficit for the next two fiscal years combined was $7.95 billion. To reduce the 2009 deficit, the governor submitted, and the legislature passed, a number of deficit mitigation plans, including P.A. 08-1 and P.A. 09-1. In addition, the governor sought state employee concessions, state agency budget rescissions, instituted a ban on state travel and nonessential purchasing by state agencies, and instituted a hiring freeze.
“[Public Acts 1978, No. 78-16], effective January 1, 1980, codified as § 22a-243 et seq., is commonly known as the ‘Bottle Bill.’ In an effort to reduce litter and solid waste levels, the Bottle Bill established a system of beverage container recycling to be administered, in part, by Connecticut's beer and soft drink distributors such as the plaintiffs. The Bottle Bill required the plaintiffs to pay a five cent refund value upon the return of empty beer or soft drink containers of the kind, size and brand sold by the distributor.
“Under the provisions of the Bottle Bill and Connecticut's long-standing and highly regulated three tier alcoholic beverage distribution system (distributor-retailer-consumer), the basic mechanics of the return and refund process function as follows:
“a. Beverage distributors such as the plaintiff[s] ‘initiate,’ or charge and collect,
a five cent refund value on each container sold to a retailer;
product, who must reimburse the retailer (or redemption center) five cents.
“The plaintiffs also incur costs and expense administering portions of the Bottle Bill, including:
“Under the Bottle Bill, distributors do not hold refund values in a manner that makes them identifiable to a specific container or a specific consumer. The plaintiffs have a statutory obligation to pay retailers five cents when presented with an empty container of the kind, size and brand sold by the plaintiffs, regardless of when the container was actually sold to a retailer or consumer. The Bottle Bill does not refer to the amounts paid by a distributor to retailers upon the return of an empty container of the kind, size and brand sold by the distributor as a ‘deposit.’ Instead, the Bottle Bill defines such payments as ‘refund values.’
2
“Who gets the money from bottles that are not returned?
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Mckenna v. Delente., Nos. 28681, 29433.
... ... Instead, the defendant cites McCarthy v. Santangelo, 137 Conn. 410, 414, 78 A.2d 240 (1951), for the proposition that the defense of contract illegality need not be pleaded specially ... ...