Serrani v. Board of Ethics of City of Stamford

• Decision Date: 06 April 1993
• Docket Number: No. 14570,14570
• Court: Connecticut Supreme Court
• Parties: Thom SERRANI v. BOARD OF ETHICS OF the CITY OF STAMFORD.

Page 1009

622 A.2d 1009

225 Conn. 305

Thom SERRANI v. BOARD OF ETHICS OF the CITY OF STAMFORD.

No. 14570.

Supreme Court of Connecticut.

Argued Jan. 5, 1993.

Decided April 6, 1993.

Berdon, J., dissented and filed an opinion.

James R. Fogarty, with whom was Carolyn W. Alexander, Stamford, for appellant (plaintiff).

Thomas F. Maxwell, Jr., with whom were Laura P. O'Connor, Southport, and, on the brief, Linda R. Pesce, Law Student Intern, for appellee (defendant).

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

PER CURIAM.

The substantive issue in this appeal is whether the expiration of a public employee's term of office divests a municipal board of ethics of the authority to continue an investigation into alleged official misconduct during the term of public employment. The plaintiff, Thom Serrani, brought an action for declaratory and injunctive relief to prevent the defendant, the board of ethics of the city of Stamford, from exercising continuing jurisdiction to investigate his conduct during his expired term of office as mayor. The trial court, after an evidentiary hearing, denied the plaintiff's application for a temporary injunction. The plaintiff then moved the court to render judgment in favor of the defendant. Despite the defendant's objection, the trial court granted the plaintiff's motion. The plaintiff appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199(c). Because we conclude that the trial court did not have jurisdiction to render a judgment on the present record, we reverse and remand the case for further proceedings.

The procedural history of this case is undisputed. As the trial court observed in its memorandum of decision denying the plaintiff's application for a temporary injunction, the plaintiff's complaint sought injunctive relief as part of a claim for a declaratory judgment. ¹ After the trial court's denial of the temporary injunction, the plaintiff moved the trial court to render judgment in favor of the defendant. The plaintiff represented to the court that he had no further evidence or argument to offer to advance his claim that § 15 of the Stamford Municipal Code of Ethics ² is unenforceable in the circumstances of his case. Although the defendant objected, seeking the opportunity to bolster further its arguments to sustain the validity of § 15, the trial court granted the plaintiff's motion and rendered judgment for the defendant. ³

A declaratory judgment action was the proper way to raise the plaintiff's challenge to the validity of § 15 of the Stamford Municipal Code of Ethics, which purports to authorize the defendant, upon an affirmative vote, to exercise continued jurisdiction over officials after they have left municipal office. See Bombero v. Planning & Zoning Commission, 218 Conn. 737, 742-43, 591 A.2d 390 (1991). The jurisdiction of the trial court over declaratory judgment actions depends upon compliance with the notice requirement of Practice Book § 390(d). That section provides in relevant part: "The court will not render declaratory judgments upon the complaint of any person ... (d) unless all persons having an interest in the subject matter of the complaint ... have reasonable notice thereof." Failure to comply with § 390(d) deprives the trial court of subject matter jurisdiction to render a declaratory judgment. See, e.g., Connecticut Ins. Guaranty Assn. v. Raymark Corporation, 215 Conn. 224, 229, 575 A.2d 693 (1990); Benz v. Walker, 154 Conn. 74, 77, 221 A.2d 841 (1966). "[J]urisdiction of the subject matter is a question of law and cannot be waived or conferred by consent either in the trial court or here.... Once brought to the attention of the court, regardless of the form of the motion, it must be acted upon." (Internal quotation marks omitted.) In re Judicial Inquiry No. 85-01, 221 Conn. 625, 629, 605 A.2d 545 (1992); Practice Book §§ 143, 145.

Because neither the Supreme Court record nor the trial court file disclosed compliance with § 390(d), this court asked the parties for clarification. Without conceding the existence of any jurisdictional difficulty, the plaintiff offered to effect a cure by withdrawing his second request for declaratory relief, ⁴ thereby purporting to limit his claim to one directly addressing only his own right to relief from the defendant's continued exercise of investigatory authority after his departure from mayoral office.

We need not decide whether a partial withdrawal of the plaintiff's complaint, if it had predated the purported rendering of a final judgment in this case, would have allowed him to bypass the notice requirements for a declaratory judgment. The lack of subject matter jurisdiction to render a final judgment cannot be cured retrospectively. Circle Lanes of Fairfield, Inc. v. Fay, 195 Conn. 534, 540, 489 A.2d 363 (1985). The judgment presently on appeal must, therefore, be set aside.

Our conclusion that the trial court lacked subject matter jurisdiction to render its declaratory judgment does not, however, require a dismissal of the plaintiff's action on remand. A jurisdictional defect relating to notice can be remedied in any of the ways noted in Connecticut Ins. Guaranty Assn. v. Raymark Corporation, supra, 215 Conn. at 230, 575 A.2d 693. ⁵ Notably, the plaintiff may ask for an order of notice in order to comply with the procedural requirements of the Practice Book with respect to individuals whose identity might otherwise be difficult to ascertain. Once there has been compliance with § 390(d), ⁶ the trial court will have plenary authority to render whatever judgment it then deems appropriate. Id.

The judgment is reversed and the case is remanded for further proceedings consistent with this opinion.

BERDON, Associate Justice, dissenting.

The majority remands this case to the trial court on the basis of a hypertechnical application of our subject matter jurisdiction.

The issue that both parties urge us to decide today is a pure question of law--that is, whether the defendant board of ethics of the city of Stamford retains jurisdiction to investigate alleged official misconduct after the official in question has left municipal office. The underlying controversy dates back to 1990, when the board of ethics began holding informal hearings to determine whether there was probable cause to believe that the plaintiff, Thom Serrani, then mayor of Stamford, had violated the city's code of ethics by purchasing equipment through bid waiver rather than public bids.

I believe that Serrani, the board of ethics, and most importantly, the people of Stamford are entitled to an expeditious determination of whether the board continues to have jurisdiction to investigate the former mayor. The majority refuses to make this determination. Instead, they insist upon pursuing the jurisdictional question, even though both parties urge us to reach the merits and there is no factual basis for concluding that there was insufficient notice for the declaratory judgment.

First, let me indicate those matters upon which the majority and I agree. It is true that "unless all persons having an interest in the subject matter of the complaint are parties to the action or have reasonable notice thereof"; Practice Book § 390(d); the court does not have subject matter jurisdiction. E.g., Connecticut Ins. Guaranty Assn. v. Raymark Corporation, 215 Conn. 224, 229, 575 A.2d 693 (1990). Subject matter jurisdiction cannot be waived. E.g., Practice Book § 145; In re Judicial Inquiry No. 85-01, 221 Conn. 625, 629, 605 A.2d 545 (1992). Lack of subject matter jurisdiction can be raised on appeal for the first time by the parties or the court. Lo Sacco v. Young, 210 Conn. 503, 508, 555 A.2d 986 (1989).

In this case, the court raised the issue on its own. The plaintiff responded that notice was given by serving the complaint on the only two nonparties who might be affected even indirectly, namely, the city of Stamford and Thomas Canino. ¹ The defendant does not contest this. What more does the court require? The majority does not identify anyone who has not been, but should have been made a party or given notice. Clearly, unless it is patently deficient, we should rely upon the adversary system for the predicate facts, even where subject matter jurisdiction is concerned.

Although notice to persons or entities who might be affected by a judgment is important for due process reasons, there are practical limitations dictated by reasonableness. "In any common law system of adjudication, rules of general application are established through litigation between private parties. Should due process require those parties to give notice to the world that they are in litigation over an important legal issue or lose the right to bring their dispute to court, the judicial process would be burdened with a requirement which may be costly, heretofore unnecessary, and in some cases impossible to fulfill." 2 E. Stephenson, Connecticut Civil Procedure (C. Tait, J. Daly & P. Adomeit, Sup.1976) p. 74.

In the past, this court has been inconsistent in its holdings on declaratory judgment jurisdiction. For example, in State ex rel. Kelman v. Schaffer, 161 Conn. 522, 522-23, 290 A.2d 327 (1971), the plaintiffs sought a declaratory judgment that a statute prohibiting citizens under age twenty-one from holding municipal office was unconstitutional. The trial court rendered a declaratory judgment upholding the statute's validity. Id., at 524, 290 A.2d 327. Upon finding that the plaintiffs had failed to comply with the notice requirement for declaratory judgment jurisdiction, this court remanded the case to the trial court with direction to dismiss the declaratory judgment claim. Id., at 529, 531, 290 A.2d 327. In contrast, in Knights of Columbus Council No. 3884 v. Mulcahy, 154 Conn. 583, 586, 227 A.2d 413 (1967) (appeal of a...