Kerrigan v. Commissioner of Public Health

• Decision Date: 15 August 2006
• Docket Number: No. 17563.,17563.
• Citation: 904 A.2d 137,279 Conn. 447
• Court: Connecticut Supreme Court
• Parties: Elizabeth KERRIGAN et al. v. COMMISSIONER OF PUBLIC HEALTH et al.

904 A.2d 137

279 Conn. 447

Elizabeth KERRIGAN et al. v. COMMISSIONER OF PUBLIC HEALTH et al.

No. 17563.

Supreme Court of Connecticut.

Argued February 9, 2006.

Decided August 15, 2006.

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Vincent P. McCarthy, with whom was Kristina J. Wenberg, for the appellant (proposed intervenor Family Institute of Connecticut).

Kenneth J. Bartschi, Hartford, with whom were Bennett Klein, pro hac vice, and, on the brief, Annette Lamoreaux, New York City, Lori Rifkin, Karen L. Dowd, Hartford, Maureen Murphy, New Haven and Mary L. Bonauto, pro hac vice, for the appellees (plaintiffs).

Gregory T. D'Auria, associate attorney general, with whom were Robert W. Clark, assistant attorney general, and, on the brief, Richard Blumenthal, attorney general, and Susan Quinn Cobb, assistant attorney general, for the appellees (defendants).

SULLIVAN, C.J., and BORDEN, NORCOTT, PALMER and ZARELLA, Js.^*

NORCOTT, J.

In this appeal, we consider whether the trial court properly denied the motion of the proposed intervenor, the Family Institute of Connecticut (institute), to intervene as a party defendant in this declaratory judgment action brought by the plaintiffs, seven same sex couples,¹ against, among others, the defendant department of public health (department),² challenging the constitutionality of Connecticut's marriage laws insofar as they preclude the issuance of marriage licenses to same sex couples. On appeal,³ the institute, a public policy organization that supports heterosexual marriage as the ideal environment for raising children claims that the trial court should have permitted it to intervene in this litigation as a matter of right, or in the alternative, permissively. We affirm the judgment of the trial court.

The record reveals the following undisputed facts and procedural history. In August, 2004, the seven plaintiff couples went separately to the office of the defendant Dorothy Bean, the deputy and acting town clerk and registrar for vital statistics of the town of Madison, and requested applications for marriage licenses. An employee acting on Bean's behalf stated that, in accordance with an opinion authored by the attorney general dated May 17, 2004, she could not issue them marriage licenses. Thereafter, the plaintiffs commenced this action, claiming that, to the extent that any statute, regulation or common-law rule precludes otherwise qualified individuals from marrying because they wish to marry someone of the same sex, or are gay or lesbian couples, such statutes, regulations and common-law rules violated numerous provisions of the Connecticut constitution. The plaintiffs requested a declaratory judgment to this effect, as well as injunctions ordering: (1) Bean to issue marriage licenses to the plaintiffs upon proper completion of the applications; and (2) the department "to take any and all steps necessary to effectuate the [c]ourt's declaration, including registering such marriages upon proper return." The defendants answered the complaint with general denials.

Shortly after the plaintiffs filed the complaint, the institute moved, pursuant to General Statutes § 52-107,⁴ and Practice Book § 9-18,⁵ to intervene in the case as a matter of right, or in the alternative, permissively. According to the motion papers, which include an affidavit from the institute's executive director, Brian Brown, the institute is a nonpartisan, nonprofit, tax exempt "public policy organization whose purpose is to help make Connecticut as family-friendly as possible.... [The institute] places a strong emphasis on education, and networks with pro-family groups around . . . Connecticut and throughout the nation." Brown alleged that the institute "foresees a restored consensus that the family consists of people related by marriage, birth or adoption, and which recognizes the vital role of both mother and father in nurturing and supporting children...."⁶ The institute sought to intervene in order to "strengthen traditional families and uphold the ideal of a father, mother and child family which has been the ideal family for thousands of years." It also sought "to assist the [c]ourt in its deliberations of important issues through the experience and expertise of [the institute's] members in the area of traditional marriage and raising children in a traditional marriage."

The institute subsequently supplemented its motion with additional papers arguing that the defendants' answering of the complaint without first filing a motion to strike demonstrated their "unwillingness to aggressively defend the marriage statutes," because "truly adversarial defendants would have filed motions to strike the complaint where, as here, there is no existing Connecticut law supportive of the plaintiffs' constitutional claims. The failure of the [s]tate defendants to file motions to strike demonstrates that they do not adequately represent the interests of [the institute]." The supplemental papers further noted that, the "failure (or refusal) of the [s]tate defendants to test the legal sufficiency of the complaint by moving to strike raises an inference that they are sympathetic to [the] [p]laintiffs' desire for same-sex marriage, and thus `friendly' to [the] [p]laintiffs.⁷ If this is true, this case is not truly adversarial among the existing parties, a vital component of our system of jurisprudence."

The trial court denied the institute's motion to intervene in a comprehensive memorandum of decision. With respect to intervention as a matter of right, the trial court concluded that, "[w]hatever the outcome of this litigation, it is manifest that no legal interest of [the institute] will be affected thereby. Moreover, [the institute] has failed to demonstrate that it has any interest at stake that is different from any other individual or entity that has a strongly held view about the subject matter of this litigation.... [The institute] has no interest to assert that is any different from any member of the public at large who may have an opinion about important political and social issues of the day. The fact that [the institute] might be more articulate, vocal, passionate or organized in expressing its view does not confer upon it a legal interest of any kind."

The trial court also denied the institute's motion for permissive intervention, concluding that, "[w]ithout some interest different from that of any number of individuals or organizations with an opinion on the subject of same sex marriage, the grant of intervention to [the institute] would open the doors to intervention by any number of other proposed intervenors with a similar or opposing view, creating a vast and unwieldy lawsuit that would ill serve the real interests of the plaintiffs and defendants already in the case."⁸ The trial court noted, however, that the submission of amicus curiae briefs by public policy organizations at an "appropriate time" might be "helpful to the court in determining one or more of the ultimate issues to be decided." The trial court rendered judgment accordingly, and this appeal followed.⁹

Before turning to the institute's specific claims on appeal, we note the applicable standard of review. The institute and the defendants, citing the Appellate Court decision in Rosado v. Bridgeport Roman Catholic Diocesan Corp., 60 Conn. App. 134, 142, 758 A.2d 916 (2000), contend that the trial court's denial of a motion to intervene as a matter of right is subject to plenary review. The plaintiffs claim, however, that Rosado is inconsistent with precedent from this court, specifically Washington Trust Co. v. Smith, 241 Conn. 734, 747-48, 699 A.2d 73 (1997), wherein this court applied the abuse of discretion standard of review to the trial court's determination that two parties claiming a right to redemption could not intervene as of right in a foreclosure action. Although all parties' case citations are accurate, we now conclude that the analytical distinction between the two different types of intervention, specifically, permissively and as of right, requires us to review de novo the trial court's determination as to the nature and extent of the interests at issue in a motion for intervention as a matter of right.¹⁰ See Horton v. Meskill, 187 Conn. 187, 191-92, 445 A.2d 579 (1982) ("The distinction between intervention of right and permissive intervention, such as is found in Rule 24 of the Federal Rules of Civil Procedure, has not been clearly made in Connecticut practice.... Most of our cases discuss the admission of new parties as coming within the `broad discretion' of the trial court.... But there are also cases which make clear that intervention of right exists in Connecticut practice." [Citations omitted.]). In addition to accommodating the "direct and substantial interests" implicated by a motion to intervene as a matter of right, the less restrictive de novo standard of review is more consistent with the nature of the relevant inquiry taken to evaluate such a claim, which is confined to a review of the relevant pleadings, with all allegations therein taken as true. Washington Trust Co. v. Smith, supra, at 746, 699 A.2d 73. Thus, to the extent that Washington Trust Co. stands for the proposition that, other than a matter of timeliness, a trial court's decision on the merits of a party's motion to intervene as a matter of right, and specifically the nature and extent of the rights at issue, is subject to review for abuse of discretion, it is overruled.¹¹

I

We now turn to the institute's claim that the trial court improperly denied its motion to intervene as a matter of right. Specifically, the institute contends that the trial court improperly concluded that: (1) it does not have a sufficiently significant interest in the outcome of the litigation, and that denial of the motion to intervene would not impair the institute's ability to protect its interests; and (2) the present defendants, who are represented by the attorney general...