Tucker v. Maher
| Decision Date | 13 March 1984 |
| Docket Number | No. 11374,11374 |
| Citation | 472 A.2d 1261,192 Conn. 460 |
| Court | Connecticut Supreme Court |
| Parties | Stanley V. TUCKER v. Edward C. MAHER et al. |
Stanley V. Tucker, pro se, appellant (plaintiff).
Wendell S. Gates, Asst. Atty. Gen., with whom, on the brief, was Joseph I. Lieberman, Atty. Gen., for appellee (named defendant).
Before SPEZIALE, C.J., and PETERS, HEALEY, SHEA and GRILLO, JJ.
The plaintiff, Stanley V. Tucker, litigated this action in a four-count substituted complaint against Edward C. Maher, commissioner of income maintenance, and Sonia Brown. 1 The first count alleged that Maher wantonly and wilfully violated his duties under General Statutes § 17-2f 2 in denying, through his departmental employees, the making of direct payments to the plaintiff for rents owed to him for specific periods by the defendant Brown, the plaintiff's tenant. The second count incorporated all of the allegations of the first count and further alleged that Maher's ordering his subordinate employees not to deal with the plaintiff under § 17-2f was a violation of General Statutes § 35-28 of the Connecticut Anti-Trust Act. In the third count, denominated a "Civil Rights Complaint for Declaratory Relief" under 42 U.S.C. § 1983, the plaintiff alleged that Maher, who was responsible for making direct mailings of rents to landlords under General Statutes § 17-2f, had, with his subordinate employees, refused to honor written assignments by tenants to the plaintiff of their rental allotment from the department on the ground that General Statutes § 17-82k prohibits doing so. 3 It is also alleged that the plaintiff has received judgments for unpaid rent from state welfare recipients which he has been unable to execute because of the provisions of § 17-82k and "Plaintiff claims said judgments as damages." That count further recited in part that "[i]n this count Plaintiff seeks a declaratory order of this court holding Conn. GS 17-82k unconstitutional and void for the following reasons ...." Among the reasons urged for its unconstitutionality are that (1) it "confiscates" private property without compensation because a major part of the welfare budget is misspent thus "confiscating" private property by diverting vital income needed to pay such things as utilities, taxes and mortgages; (2) it renders the summary process statute ineffective in preventing property owners from sustaining large rent losses because some welfare tenants do not use their rent allotments properly; and (3) it creates two classes of citizens who are treated unequally, i.e., welfare recipients who are allowed to misspend "hundreds of millions of dollars on [things] other than rent" and landlord vendors to welfare recipients who are entitled to rental payments for premises rented to welfare recipients but are denied the same because of § 17-82k. The fourth count, which is denominated a "Civil Rights Complaint for Declaratory, Injunctive Relief and for Damages" also alleged that it was brought under 42 U.S.C. 1983. It alleged that Maher had personally chosen to discriminate "purposely and intentionally" against landlord vendors as a class of which the plaintiff is a member by the denial of all direct landlord vendor payments while making many millions of dollars in "direct vendor payments to other classes of vendors such as medical supplies and services, utilities, including hea[t], skilled nursing services and hospitals and other claims of medical treatment and/or care." This count further alleged that because of this claimed discriminatory practice, the plaintiff has and is suffering irreparable harm in loss of rents, inability to pay property taxes, mortgages and foreclosure costs and loss of property values. Finally, in this count, he sought a declaratory judgment that this claimed practice violated the fourteenth amendment to the United States constitution by its invidious discrimination and denial of equal protection of the laws, and he sought damages, including those punitive in nature.
After a trial to the court, it found for the defendants on all the issues. It dismissed the case as to the defendant Brown, concluding that because there had been no service of process upon her, and she had not appeared in the case or participated in the trial, it had no jurisdiction over her. 4 As to the second count, the trial court concluded that because the plaintiff had not proven the "factual allegations" 5 of the first count which had been incorporated into the second count, the plaintiff could not recover on the second count. On the record before us this conclusion is not clearly erroneous. 6 The trial court rejected the claims made in the third count finding essentially that the challenged statute, § 17-82k, was constitutional and that it prohibited the direct payment of rent which the plaintiff claimed. In holding against the plaintiff on the fourth count, the trial court found that Maher had not " 'purposely and intentionally' chosen to discriminate against [the] plaintiff, but has denied direct payment in accordance with applicable law." Moreover, in stating that the plaintiff had not demonstrated that any of his civil or constitutional rights had been violated, it concluded that he was not entitled to any of the relief, statutory or equitable, which he sought under the fourth count. 7 This appeal followed.
On appeal, the plaintiff has raised and briefed a number of claims of error, the resolution of one of which we deem dispositive of this appeal. Preliminarily, however, we point out that we need to discuss only the third and fourth counts of the substituted complaint. The first count, as admitted in the plaintiff's brief, has not been appealed. The trial court correctly found, as we have noted, that the plaintiff could not prevail on the second count because he had not proven the "factual allegations" of the first count which had been incorporated verbatim into the second count.
Regarding the third and fourth counts, Maher interposed a special defense of lack of jurisdiction to give declaratory relief claiming that all persons having an interest in the subject matter of the complaint were not parties to the action or were not given reasonable notice of it in compliance with Practice Book § 390(d) and General Statutes § 4-175. 8 Although it had reached and decided the merits of these two counts, the trial court, thereafter, concluded that the declaratory judgment sought could not be granted because the plaintiff had not complied with this statute by first requesting that the state agency "pass upon the order in question." The plaintiff claims that he has complied with General Statutes § 4-175 pointing to several exhibits of certified mailings to the welfare department over the years demanding direct payment of rent, including an affidavit "under G.S. 17-2f and certified letter requesting fair hearing from Commissioner [and] demand for hearing ..." to which he received no response from the state. He also argues that no more compelling compliance with § 4-175 is required nor could be proven and that the lack of response under § 4-176 is ample ground to allow a declaratory judgment. While maintaining that he has fully complied with § 4-175 and Practice Book § 390(d), he argues that the statutory requirement in § 4-175 that "the agency shall be made a party to the action" is fully satisfied by suing Maher in his official capacity as commissioner and personally. Moreover, he claims that because these counts are brought under laws passed by the United States Congress in 42 U.S.C. § 1983, under the supremacy clause, such actions proceed even though Practice Book § 390(d) is not complied with. 9
On the other hand, the defendant argues that the evidence which the plaintiff introduced, i.e., the mailings referred to above demanding direct payment of rent and a request for a fair hearing, does not demonstrate, as claimed, his compliance with § 4-175 which provides: He argues that the plaintiff's submissions are clearly not requests to the agency "to pass upon the validity or applicability of the regulation or order in question," nor was there any evidence of a request for a declaratory ruling and, therefore, that the plaintiff is in violation of the statute. The defendant also argues that a declaratory judgment could not be rendered because there was no compliance with Practice Book § 390(d) which provides that "[t]he court will not render declaratory judgment ... (d) unless all persons having an interest in the subject matter of the complaint are parties to the action or have reasonable notice thereof." He urges that it is obvious that all persons having an interest in this matter have not been notified and that a determination that § 17-82k was unconstitutional would affect a "vast number" of people in this state. Finally, he argues that the plaintiff has not met the mandates of due process.
Even assuming without deciding that Maher's "order" to his departmental employees was, in effect, a "regulation or order" of his agency under the Uniform Administrative Procedure Act, and even assuming, without deciding, that the plaintiff complied with General Statutes § 4-176, we agree with the defendant's claim that the plaintiff has not complied with the mandate of Practice Book § 390(d). ...
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...time limitation and notice requirements. See Lampasona v. Jacobs, supra, 209 Conn. at 729, 553 A.2d 175, citing Tucker v. Maher, 192 Conn. 460, 469, 472 A.2d 1261 (1984) (notice of declaratory judgment action to parties affected by the action); Connecticut Steel Co. v. National Amusements, ......