Commissioner of Environmental Protection v. Connecticut Bldg. Wrecking Co., Inc.

• Citation: 227 Conn. 175,629 A.2d 1116
• Court: Supreme Court of Connecticut
• Decision Date: 10 August 1993
• Parties: COMMISSIONER OF ENVIRONMENTAL PROTECTION v. CONNECTICUT BUILDING WRECKING COMPANY, INC. COMMISSIONER OF ENVIRONMENTAL PROTECTION v. CONNECTICUT BUILDING WRECKING COMPANY, INC., Et Al. COMMISSIONER OF ENVIRONMENTAL PROTECTION v. Geno CAPOZZIELLO Et Al. 14435 to 14437.

Page 1116

629 A.2d 1116

227 Conn. 175

COMMISSIONER OF ENVIRONMENTAL PROTECTION v. CONNECTICUT BUILDING WRECKING COMPANY, INC.

COMMISSIONER OF ENVIRONMENTAL PROTECTION v. CONNECTICUT BUILDING WRECKING COMPANY, INC., Et Al.

COMMISSIONER OF ENVIRONMENTAL PROTECTION v. Geno CAPOZZIELLO Et Al.

14435 to 14437.

Supreme Court of Connecticut.

Argued April 29, 1993.

Decided Aug. 10, 1993.

Gary A. Mastronardi, Bridgeport, for appellants (defendants Connecticut Bldg. Wrecking Co., Inc., and Geno Capozziello).

Robert B. Teitelman, Asst. Atty. Gen., with whom, on the brief, was Richard Blumenthal, Atty. Gen., for appellee (plaintiff).

Before PETERS, C.J., and CALLAHAN, BORDEN, BERDON and NORCOTT, JJ.

PETERS, Chief Justice.

The principal issue in these consolidated appeals is the constitutional necessity of a jury trial in an environmental enforcement action. The trial court rendered judgment in these three environmental actions, which had been consolidated for trial, against the defendants, Connecticut Building Wrecking Company, Inc. (CBW), and Geno Capozziello and Russell Capozziello, ¹ and in favor of the plaintiff, the commissioner of environmental protection (commissioner). The defendants appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeals to this court pursuant to Practice Book § 4023 and General Statutes § 51-199(c). We affirm in part and reverse in part.

The commissioner brought the three cases from which this appeal arises against one or all of the defendants for alleged environmental violations committed in Bridgeport and Monroe. In Docket No. 14435, the commissioner sought to enforce a June 1, 1986 final administrative order (1986 order) requiring CBW to discontinue all waste deposit at 329 Central Avenue in Bridgeport (Bridgeport site). The complaint in Docket No. 14435 also alleged that CBW had committed solid waste violations, water pollution violations and unreasonable pollution at the Bridgeport site from June 1, 1986, to the date of the complaint. The commissioner sought injunctive relief and civil penalties against CBW pursuant to General Statutes §§ 22a-18, 22a-226, 22a-435 and 22a-438. ² In Docket No. 14436, the commissioner alleged that all of the defendants had illegally dumped solid waste at 781 Main Street in Monroe (Monroe site), a designated wetland, and had created a discharge into the groundwater without a permit. The commissioner sought injunctive relief and civil penalties against all of the defendants pursuant to General Statutes § 22a-438.

In Docket No. 14437, the commissioner alleged substantially the same claims against the Capozziellos as those alleged against CBW in Docket No. 14435, with the exception of the claim relating to the 1986 order, as that order had been directed solely against CBW. The commissioner sought injunctive relief and civil penalties against the Capozziellos pursuant to §§ 22a-18, 22a-226, 22a-435 and 22a-438.

In each of the three cases, the defendants asserted several special defenses, most of which are not relevant to these appeals. In Docket No. 14437, the Capozziellos asserted the defenses of res judicata and collateral estoppel, which the trial court, Stengel, J., rejected. In addition, the trial court, M. Hennessey, J., granted a motion by the commissioner to strike Docket No. 14437 from the jury docket.

After a consolidated trial to the court, the trial court, Stengel, J., made the following findings. Since the issuance of the 1986 final order, the defendants ³ had continuously violated that order by "blatantly disregard[ing]" its directives, and had violated § 22a-207 et seq. by operating a volume reduction plant and a transfer station at the Bridgeport site. In addition, the defendants had, in violation of § 22a-32, deposited debris at the Monroe site, a wetland, without a permit. As to the allegation of water pollution at the Bridgeport site, the trial court found that the commissioner had not sustained the requisite burden of proof.

In view of these violations, the trial court enjoined the defendants from depositing, receiving, processing and transferring waste at the Bridgeport site. The court ordered them to remove the existing debris from that site and to dispose of it at an authorized facility, with certain restrictions on out-of-state disposal. The court also enjoined the defendants from either depositing solid waste or owning or operating a solid waste transfer station anywhere in the state without a permit. Finally, the court ordered the defendants to maintain a record of waste removal activities at the Bridgeport site, to be submitted weekly to the commissioner, until such time as all waste had been removed from that site.

The trial court also imposed civil penalties totaling $868,950, including: in Docket No. 14435, $417,200 pursuant to § 22a-226 for the violation of the 1986 order for 1192 days, at $350 per day; in Docket No. 14436, $162,750 pursuant to § 22a-438 for the unauthorized dumping of debris in a wetland area for 651 days, at $250 per day, in violation of § 22a-32; and, in Docket No. 14437, $289,000 pursuant to § 22a-226 for operating a volume reduction plant and a transfer station without a permit for 578 days, at $500 per day, in violation of § 22a-207. In accordance with Carothers v. Capozziello, 215 Conn. 82, 103-104, 574 A.2d 1268 (1990), and § 22a-438, the trial court determined the appropriate amount of penalties on the basis of the gravity of the violations, the substantial period of time over which the defendants had committed the violations, the substantial profits generated by the violations, the hazard posed to the public because of the violations, the flagrancy with which the defendants had committed the violations and the defendants' lack of good faith in failing to comply with applicable environmental requirements. The trial court imposed joint and several liability for each of the fines on each defendant because "all defendants are equally answerable and responsible to the Commissioner."

On appeal, the defendants claim that: (1) the trial court, M. Hennessey, J., improperly granted the commissioner's motion to strike Docket No. 14437 from the jury docket; and (2) the trial court, Stengel, J., improperly (a) rejected the defense of res judicata in Docket No. 14437, (b) held the Capozziellos liable, jointly and severally with CBW, for the civil penalty imposed in Docket No. 14435, and (c) imposed a civil penalty in Docket No. 14436, for 651 days of continuing violations. ⁴ We agree with the defendants as to the claim concerning the penalty in Docket No. 14435 and affirm the judgment of the trial court as to the remaining claims.

I

The Capozziellos ⁵ claim that the trial court, M. Hennessey, J., improperly struck the third case, Docket No. 14437, from the jury docket. ⁶ We disagree.

Article first, § 19, of the Connecticut constitution guarantees a jury trial in all cases for which "there was a right to a trial by jury at the time of the adoption of [that] provision," which was 1818. (Internal quotation marks omitted.) Skinner v. Angliker, 211 Conn. 370, 373-74, 559 A.2d 701 (1989); see Canning v. Lensink, 221 Conn. 346, 350-51, 603 A.2d 1155 (1992); Ford v. Blue Cross & Blue Shield of Connecticut, Inc., 216 Conn. 40, 50, 578 A.2d 1054 (1990). Article first, § 19, also provides the right to a jury trial in cases that are substantially similar to cases for which the right to a jury trial existed at common law in 1818. Skinner v. Angliker, supra, 211 Conn. at 374, 559 A.2d 701. "Accordingly, in determining whether a party has a right to a trial by jury under the state constitution ... the court must ascertain whether the action being tried is similar in nature to an action that could have been tried to a jury in 1818 when the state constitution was adopted. This test requires an inquiry as to whether the course of action has roots in the common law, and if so, whether the remedy involved was one in law or equity." Id., at 375-76, 559 A.2d 701.

In a case that involves both legal and equitable claims, " 'whether the right to a jury trial attaches depends upon the relative importance of the two types of claims.' " Texaco, Inc. v. Golart, 206 Conn. 454, 458-59, 538 A.2d 1017 (1988). " '[W]here the essential right asserted is equitable in its nature and damages are sought in lieu of equitable relief or as supplemental to it in order to make that relief complete, the whole action is one in equity and there is no right to a jury trial.' " Dick v. Dick, 167 Conn. 210, 220, 355 A.2d 110 (1974). A jury trial is required on legal claims that are joined in the same action with equitable claims only if " 'the essential basis of the action is such that the issues presented would be properly cognizable in an action of law ... even though equitable relief is [also] asked....' " United States Trust Co. v. Bohart, 197 Conn. 34, 45, 495 A.2d 1034 (1985). ⁷

The Capozziellos do not claim that environmental enforcement actions existed at common law in 1818, but rather that such actions are substantially similar to actions in debt, which existed at common law in 1818 and could be tried to a jury. In support of this contention, they cite Tull v. United States, 481 U.S. 412, 107 S.Ct. 1831, 95 L.Ed.2d 365 (1987), in which the United States Supreme Court held that the seventh amendment ⁸ guarantees a jury trial in actions for civil penalties and injunctive relief under the federal Clean Water Act, 33 U.S.C. § 1251 et seq. ⁹ We are not persuaded.

In Connecticut, an environmental enforcement action for injunctive relief and civil penalties, like Docket No. 14437, is not substantially similar to an action in debt. A common law action in debt lies "where there [is] due a sum certain or capable of reduction to certainty." Anderson v. Bridgeport, 134 Conn. 260, 264, 56 A.2d 650 (1947). By contrast, the equitable common law action in assumpsit "might be brought to recover...