Moshier v. Goodnow

• Decision Date: 05 February 1991
• Citation: 586 A.2d 557,217 Conn. 303
• Court: Connecticut Supreme Court
• Parties: William MOSHIER v. Roger GOODNOW et al. 14125.

Page 557

586 A.2d 557

217 Conn. 303

William MOSHIER v. Roger GOODNOW et al.

14125.

Supreme Court of Connecticut.

Argued Dec. 4, 1990.

Decided Feb. 5, 1991.

Jeremiah Donovan, with whom was Terry Sablone, for appellants (defendants).

Lynda B. Munro, with whom was Michael J. Wells, for appellee (plaintiff).

Before PETERS, C.J., and SHEA, CALLAHAN, GLASS, COVELLO, HULL and BORDEN, JJ.

PETERS, Chief Justice.

The principal issue in this appeal is the scope of the taxing authority retained by a town's board of selectmen after the town's electors have voted to reject town budgets recommended by the town's board of finance. The plaintiff, William Moshier, a taxpayer of the town of Old Saybrook, ¹ filed a complaint alleging that, because the town's electors had defeated four proposed 1990-91 budgets, the defendants, the town's board of selectmen, ² should be enjoined from collecting any taxes in accordance with a July 18, 1990 tax levy based on estimated unreimbursed expenditures for the 1990-91 fiscal year. After a hearing, the trial court issued an order temporarily enjoining the defendants from collecting any taxes. Pursuant to General Statutes § 52-265a, ³ the defendants received permission to file an immediate expedited appeal from this interlocutory order. ⁴ We now reverse the judgment of the trial court and direct that judgment be rendered in favor of the defendants.

I

On October 25, 1990, subsequent to the filing of the defendants' appeal, the electors of the town approved a 1990-91 fiscal year budget. Pursuant to the new budget, the town's board of finance that same day set a new mill rate identical to that which had earlier been established in the defendants' contested rate bill of July 18, 1990. ⁵ Since the plaintiff's complaint does not challenge the validity of the October 25 budget or the new mill rate, the first issue that we must decide is whether the defendants' appeal must be dismissed as moot.

The standards governing mootness are well established. Because this court has no jurisdiction to give advisory opinions, no appeal can be decided on its merits in the absence of an actual controversy for which judicial relief can be granted. Sobocinski v. Freedom of Information Commission, 213 Conn. 126, 134-35, 566 A.2d 703 (1989); Shays v. Local Grievance Committee, 197 Conn. 566, 571, 499 A.2d 1158 (1985); Waterbury Hospital v. Connecticut Health Care Associates, 186 Conn. 247, 249-50, 440 A.2d 310 (1982); Connecticut Foundry Co. v. International Ladies Garment Workers Union, 177 Conn. 17, 19, 411 A.2d 1 (1979); Reynolds v. Vroom, 130 Conn. 512, 515, 36 A.2d 22 (1944). The mill rate that the trial court's interlocutory injunction rendered unenforceable has now been validated, for the future, by the action of the town's electors. This ratifying action, which indubitably requires dissolution of the injunction against collecting further taxes, raises a serious question about the continued viability of any part of the defendants' appeal.

The parties in their briefs urge us nonetheless to reach the merits of the appeal on the theory that this case is an instance of a moot question that is "capable of repetition, yet evading review." See Weinstein v. Bradford, 423 U.S. 147, 148-49, 96 S.Ct. 347, 348-49, 46 L.Ed.2d 350 (1975); Sobocinski v. Freedom of Information Commission, supra, 213 Conn. at 135, 566 A.2d 703; Delevieleuse v. Manson, 184 Conn. 434, 437, 439 A.2d 1055 (1981). In deciding whether to invoke this mitigating principle, we have considered not only the practical difficulties of timely judicial review but also "(1) the public importance of the question presented; (2) the potential effect of the ruling on an ongoing program of the state's penal or civil system; and (3) the possibility of a similar effect on the plaintiff himself in the future." Shays v. Local Grievance Committee, supra, 197 Conn. at 572-73, 499 A.2d 1158; Waterbury Hospital v. Connecticut Health Care Associates, supra, 186 Conn. at 253 n. 5, 440 A.2d 310; Delevieleuse v. Manson, supra. The present appeal does not satisfy either of the latter two criteria: no ongoing program of the state is at issue and the future relationship between this taxpayer and his town's budgets is speculative at best. Although straitened economic times may portend increased taxpayer resistance to rising property tax rates, that political fact of life does not, in and of itself, prevent an appeal from becoming moot if no actual or practical relief can follow from our determination.

At oral argument, however, the plaintiff suggested a practical consequence that might attach to a decision in this appeal. Having failed to pay the local taxes as assessed, the amount of his liability for interest will depend upon the date on which the effective mill rate was legally set. Because his interest liability will be greater if the defendants had the independent authority to set the mill rate in July than if that authority depended upon the favorable town referendum in October, he claims that the defendants' appeal is not moot. The defendants have not challenged the accuracy of the plaintiff's representation about his tax delinquency or its consequences. Taking this fact in conjunction with the importance of the issue raised, and the difficulty of timely appellate review, we conclude that the relief we might grant is not so de minimis as to require us to dismiss the defendants' appeal.

II

On the merits, the dispositive issue is one of statutory construction. The defendants contend that, despite four town referenda rejecting budgets proposed by the town's board of finance, General Statutes §§ 7-344 and 12-123 ⁶ authorized them to set a mill rate and to levy taxes based on an informed estimate concerning projected town expenditures for 1990-91. Relying on figures generated by the board of finance about estimated expenditures reduced by estimated revenues from nontax sources and adjusted for the estimated collection rate, they determined that a mill rate of 13.5 would generate the necessary tax revenues. ⁷ The plaintiff has challenged neither the mathematical accuracy of the defendants' calculations nor the necessity of the expenditures proposed to be financed. He maintains instead that General Statutes § 7-405 ⁸ limited the scope of the defendants' authority to the setting of interim budgets based on the line item limits for 1989-90. The trial court, agreeing with the plaintiff, concluded that "[t]he board of selectmen was in error in adopting the board of finance's recommendation of July, 1990. The board of selectmen should have adopted the budgetary items from the fiscal year 1989-90." We disagree.

Only one Connecticut case has considered the scope of municipal authority to fix a mill rate in the face of formal rejection of a proposed town budget. In State ex rel. Feigl v. Raacke, 32 Conn.Sup. 237, 241-44, 349 A.2d 150 (1975), the court construed § 12-123 to sustain the discretionary authority of a board of selectmen to establish a proper mill rate for current expenses in such circumstances. The court permitted the selectmen to base their mill rate on the operating budget earlier requested and recommended by the board of finance pursuant to § 7-344, even though that recommended budget had been disapproved by the town meeting. Id., at 239, 349 A.2d 150.

The plaintiff contends that, even if we were inclined to follow Feigl, its holding has been undermined by subsequent statutory revision. When a town has failed "to lay necessary taxes or to lay a tax ... sufficient to pay the current expenses of such town," § 12-123 authorizes the town's selectmen to "make a rate bill upon its list last completed for the amount necessary, or for an amount sufficient to pay the deficit in such current expenses...." The plaintiff maintains that the meaning of "current expenses" in § 12-123 must be determined by reference to a 1977 amendment to § 7-405. Public Acts 1977, No. 77-384. That section addresses the authority of a municipality's disbursing officers to make necessary expenditures whenever "annual appropriations have not been made by a municipality before the beginning of any fiscal year." For the first ninety days, § 7-405 permits necessary expenditures to be made in accordance with amounts authorized by the municipal "appropriating body or by the board of finance or other budget-making authority." After the initial ninety day period, however, § 7-405 limits even authorized disbursements to "appropriations specified in budgetary line items for the previous fiscal year." When Feigl was decided, prior to the 1977 amendment to § 7-405, the statutes contained no provisions for ongoing municipal expenditures beyond the initial ninety day period. The plaintiff maintains that, since 1977, the authority conferred upon selectmen by § 12-123 to levy taxes to meet "current expenses" must be read in pari materia with § 7-405 so as to permit only an initial ninety day budget and thereafter to permit only monthly determinations of a mill rate set by reference to "budgetary line items for the previous fiscal year." We are unpersuaded.

The linchpin of the plaintiff's argument is his assertion that §§ 12-123 and 7-405 jointly address and circumscribe the discretion of selectmen to levy taxes. The language of the two statutes belies this argument. The authority conferred upon selectmen by § 12-123 is on its face greater than that conferred upon disbursing officers by § 7-405. Under § 12-123, selectmen have unlimited authority to "make a rate bill upon [the] list last completed" to pay necessary expenses when, as in this case, the town has "failed to lay necessary taxes." The selectmen's authority to remedy a deficit in funding for "current expenses" arises only when the town has failed to lay a tax "sufficient to pay" such expenses, i.e., when a budget properly voted is insufficient to meet town needs. There is nothing in § 12-123, read in its entirety, to suggest a...