Zizka v. Water Pollution Control Authority of Town of Windham

• Decision Date: 16 April 1985
• Citation: 490 A.2d 509,195 Conn. 682
• Court: Connecticut Supreme Court
• Parties: Jeffrey P. ZIZKA et al. v. WATER POLLUTION CONTROL AUTHORITY OF the TOWN OF WINDHAM et al.

Page 509

490 A.2d 509

195 Conn. 682

Jeffrey P. ZIZKA et al. v. WATER POLLUTION CONTROL AUTHORITY OF the TOWN OF WINDHAM et al.

Supreme Court of Connecticut.

Argued Jan. 10, 1985.

Decided April 16, 1985.

James A. Wade, Hartford, with whom was Stephen E. Goldman, Hartford, for appellants (plaintiffs).

Howard B. Schiller, Willimantic, with whom, on the brief, was Louis D. Ferreri, Willimantic, for appellees (defendants).

Before PETERS, C.J., and ARTHUR H. HEALEY, PARSKEY, SHEA and HADDEN, JJ.

PARSKEY, Associate Justice.

The plaintiffs brought an action in the Superior Court seeking a judgment declaring that the formula utilized by the water pollution control authority of the town of Windham (hereinafter the defendant) for sewer assessment violated the plaintiffs' rights to equal protection and due process of law under the federal constitution. They alleged that such violations were actionable under 42 U.S.C. § 1983 ¹ (Federal Civil Rights Act of 1871) and also claimed compensatory and punitive damages, injunctive relief and attorney's fees. The trial court, on the defendant's motion, dismissed the action and the plaintiffs have appealed. We find no error.

To understand this case requires a brief excursion into its procedural history. In September, 1980, the defendant, pursuant to General Statutes § 7-249, ² levied a sewer benefit assessment against owners of real estate within the sewer district. In October, 1980, the plaintiffs, owners of such real estate, brought an action against the defendant in three counts. (Zizka I ) In the first count, an administrative appeal under the provisions of § 7-250, ³ the plaintiffs sought to represent the class of residential real estate owners in the district subject to the assessment. In this count the plaintiffs challenged the assessment as manifestly excessive and the formula utilized by the defendant as violative of the statute. In the second count the plaintiffs challenged the assessment formula on state and federal constitutional grounds. In the third count the plaintiffs alleged that the assessment formula denied the plaintiffs equal protection of the law and due process of law under the provisions of the fifth and fourteenth amendments to the constitution of the United States and that such violations were actionable under 42 U.S.C. § 1983. The plaintiffs claimed compensatory and punitive damages under the provisions of § 1983, a declaratory judgment that the formula used violated both the state and federal constitutions, injunctive relief, attorney's fees and such other and further relief as the court deemed appropriate.

The court, Dannehy, J., dismissed the action on jurisdictional grounds. The first count was dismissed on the grounds that § 7-250 does not authorize pursuit of an administrative appeal as a class action, nor does it permit the court to hear a § 1983 claim as part of such appeal. The second and third counts were dismissed on the grounds that since an administrative appeal under § 7-250 is the exclusive method of challenging sewer assessments, the court lacked jurisdiction to hear an attack on such assessments in a collateral proceeding, and further that the court lacked jurisdiction under 28 U.S.C. § 1341 to hear a § 1983 claim against the imposition of a state or local tax. ⁴ The plaintiffs appealed the dismissal to this court. We dismissed the appeal and subsequently denied the plaintiffs' petition for certification. ⁵

The trial court dismissed the present action on the ground that the court's dismissal of the plaintiffs' earlier § 1983 action on jurisdictional grounds was res judicata. Although the trial court may well have been correct on the merits of its res judicata analysis; see 1 Restatement (Second), Judgments § 12, comment c; there is a procedural wrinkle which makes it necessary for us to rest our decision on other grounds. A motion to dismiss is the appropriate vehicle for challenging the jurisdiction of the court. Practice Book § 142. The grounds which may be asserted in this motion are: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) improper venue; (4) insufficiency of process; and (5) insufficiency of service of process. Practice Book § 143. Res judicata is not included among the permissible grounds on which to base a motion to dismiss. Res judicata with respect to a jurisdictional issue does not itself raise a jurisdictional question. It merely alleges that the court has previously decided a jurisdictional question and therefore must be asserted as a special defense. Practice Book § 164. It may not be raised by a motion to dismiss. Salem Park, Inc. v. Salem, 149 Conn. 141, 144, 176 A.2d 571 (1961); Fetzer v. Miscoe Spring Water Co., 141 Conn. 364, 366, 106 A.2d 149 (1954). Of course, there is no reason why, in an appropriate case, once the defense of res judicata has been raised the issue may not be resolved by way of summary judgment. Jensen v. Nationwide Mutual Ins. Co., 158 Conn. 251, 259, 259 A.2d 598 (1969).

Turning away from the reasoning of Zizka I as a basis for affirming the decision in Zizka II, we next consider whether the judgment in Zizka II may rest on its own bottom. This is a § 1983 claim. State courts have concurrent jurisdiction with federal courts over § 1983 claims. Maine v. Thiboutot, 448 U.S. 1, 3 n. 1, 100 S.Ct. 2502, 2504 n. 1, 65 L.Ed.2d 555 (1980); Fetterman v. University of Connecticut, 192 Conn. 539, 549, 473 A.2d 1176 (1984). The scope of a § 1983 action in state court depends in part upon the nature of the relief that is sought. In this case, the plaintiffs sought injunctive, declaratory and monetary relief. We must analyze these claims separately.

Insofar as the plaintiffs claim that they are entitled to an injunction, their § 1983 claim is barred, as we recently held in Laurel Park, Inc. v. Pac, 194 Conn. 677, 691, 485 A.2d 1272 (1984), if they had an adequate remedy at law. The plaintiffs had such a remedy available to them under General Statutes § 7-250, which provides that no assessment shall be made until after a public hearing before the water pollution control authority, at which the owner of the property to be assessed shall have an opportunity to be heard concerning the proposed assessment. It provides for notice of such a hearing both by publication and by mailing to the owners of property to be affected. It provides further for the filing with the clerk of the municipality and for publication of the amount of the assessment determined by the water pollution control authority, and the mailing of a copy of such determination to affected property owners. It also affords an aggrieved owner the right to appeal such assessment to the Superior Court within twenty-one days of the filing with a municipal clerk. The court may then appoint a state referee to appraise the benefits and make a report of his doings to the court. If the appeal produces a reduction in the assessment, the owner is entitled to be reimbursed for his overpayment. The plaintiffs' claim for injunctive relief must fail in light of the remedial relief provided under § 7-250.

The plaintiffs' claims for declaratory and monetary relief under § 1983 must be reconciled with the Federal Anti-Injunction Act; 28 U.S.C. § 1341; which provides that: "The district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State." Several questions need to be resolved concerning the applicability of § 1341 to the plaintiffs' suit: (1) Is § 1341 limited to claims for injunctive relief?; (2) Is a local sewer assessment a "tax under State law?"; (3) Does § 1341 operate as a constraint on state courts as well as on federal district courts?; and (4) If not, does § 1341 nevertheless have implications for state court § 1983 challenges to state tax collections?

The jurisdictional barrier that § 1341 creates for federal courts when there is a plain, speedy and efficient remedy in the state courts does not depend upon the form of relief that the plaintiff seeks. Section 1341 applies whether the claim is for injunctive relief; Rosewell v. LaSalle National Bank, 450 U.S. 503, 512, 101 S.Ct. 1221, 1228-1229, 67 L.Ed.2d 464 (1981); or for damages. Fair Assessment in Real Estate Assn. v. McNary, 454 U.S. 100, 113, 102 S.Ct. 177, 184, 70 L.Ed.2d 271 (1981). The policy of § 1341 therefore applies to the plaintiffs' claims for declaratory and monetary relief.

The state action that the plaintiffs challenge falls within the rubric of a state tax. A sewer assessment, although not formally denominated a "tax," involves the taxing power of the state. Group Assisting Sewer v. Ansonia, 448 F.Supp. 45, 46 (D.Conn.1978); Katz v. West Hartford, 191 Conn. 594, 602, 469 A.2d 410 (1983); Vaill v. Sewer Commission, 168 Conn. 514, 517, 362 A.2d 885 (1975).

The extent to which § 1341 bars actions in state courts is less well defined. Although there is authority for the proposition that a state court hearing a § 1983 claim has no greater jurisdiction than a federal court would have; State Tax Commission v. Fondren, 387 So.2d 712, 723 (Miss.1980), cert. denied sub nom. Redd v. Lambert, 450 U.S. 1040, 101 S.Ct. 1757, 68 L.Ed.2d 237 (1981); we believe that the better view is that § 1341 does not deprive state courts of all jurisdiction to hear § 1983 challenges to state taxes. Section 1341 is rooted in principles of federalism. It reflects the policy that federal courts should not interfere with the collection of state taxes. The logical implication from federalism is that state courts should themselves determine the adequacy of state remedies for claims contesting state taxes.

Although § 1341 does not operate as a jurisdictional barrier in state courts, it nonetheless points the way to the proper standard by which state tax challenges should be measured. In a § 1983 suit seeking...