A. GALLO CO. ET AL. v. GINA MCCARTHY COMMISSIONER OF ENVIRONMENTAL PROTECTION.

2011 Ct. Sup. 18687, 52 CLR 500
No. CV 09-5032448-SConnecticut Superior Court Judicial District of Hartford at Hartford
September 1, 2011

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION ON MOTION TO DISMISS #117
DOMNARSKI, J.

This case began with a petition for a declaratory ruling, dated May 20, 2009, which was sought from the defendant commissioner of Department of Environmental Protection (DEP commissioner). The declaratory ruling concerned interpretation of certain provisions of Connecticut’s “Bottle Bill,” Connecticut General Statutes § 22a-243 et seq. The defendant did not act on the petition within 60 days of its filing; consequently the plaintiff brought this action for declaratory judgment seeking the relief previously sought. The defendant now moves for dismissal of this action for the lack of subject matter jurisdiction on the ground of mootness.

When the plaintiffs filed their petition for declaratory ruling, the Department of Environmental Protection was the only department charged with preparing regulations, preparing forms and collecting money from the deposit accounts mandated by the Bottle Bill. In 2010, the general assembly amended the Bottle Bill by enacting Public Acts 2010, No 10-25. For purposes of this motion, the most important change in § 22a-245a was the transfer of the special account “reporting, and payment scheme, from the DEP commissioner to the commissioner of revenue services (DRS commissioner). Pursuant to § 22a-245a(c) and (d), deposit initiator reports and special account balances for the period March 15, 2009 to July 1, 2010 are submitted to the DEP commissioner. For the calendar quarter beginning July 1, 2010, and for the calendar quarters thereafter, deposit initiator reports and payments are to be submitted to the DRS commissioner.

The plaintiffs’ prayer for relief in this action is as follows: “A declaration that expenses that may be lawfully withdrawn from the Plaintiffs’ special accounts established pursuant to Connecticut General Statutes § 22a-243, et seq. are not limited to reimbursement CT Page 18688 of refund values, but also include the one and a half cent ($.015) handling fee required to be paid to the retailer for each empty beer container returned, and with respect to soft drink containers, the two cent ($.02) handling fee for the return of empty soft drinks containers, as required by Connecticut General Statutes § 22a-245(d).”

Public Acts 2010, No. 10-25, § 3 provided that “the Commissioner of Revenue Services, in consultation with the Commissioner of Environmental Protection, may adopt regulations . . . to implement the provisions of § 22a-245a.” Notably, § 22a-245a(2) also provides that “[a] deposit initiator may petition the Commissioner of Revenue Services for an alternate method of accounting . . .” This new provision would presumably allow the DRS commissioner to consider the plaintiffs’ requested relief.

The defendant maintains that because the responsibility for administration of the special accounts, originally with the DEP commissioner, has been transferred to the DRS commissioner, this action for declaratory judgment against the defendant DEP commissioner has been rendered moot.

Plaintiffs argue the action is not moot because the DEP commissioner still has `responsibilities under the amended Bottle Bill. They also place great significance upon the fact that the DRS commissioner’s interpretation of § 22a-225a, and the reporting and collection procedures for special accounts balances, are the same as those which were adopted by the DEP commissioner. Consequently, they claim the issue is not moot.

“Mootness is a question of justiciability that must be determined as a threshold matter because it implicates [this] court’s subject matter jurisdiction . . . We begin with the four part test for justiciability established in State v. Nardini, 187 Conn. 109, 445 A.2d 304 (1982) . . . Because courts are established to resolve actual controversies, before a claimed controversy is entitled to a resolution on the merits it must be justiciable. Justiciability requires (1) that there be an actual controversy between or among the parties to the dispute . . . (2) that the interests of the parties be adverse . . . (3) that the matter in controversy be capable of being adjudicated by judicial power . . . and (4) that the determination of the controversy will result in practical relief to the complainant. State v. Preston, 286 Conn. 367, 373-74, 944 A.2d 276 (2008).” In re Melody L., CT Page 18689 290 Conn. 131, 170-71, 962 A.2d 81 (2009).

As noted earlier, this is an action for declaratory judgment brought pursuant to General Statutes § 4-175. “[I]n the case of actions praying for a declaratory judgment or injunctive relief, since the remedy sought is prospective, the right to such relief is determined by the situation which has developed at the time of trial and not by that existing at the time the action was begun Holt v. Wissinger, 145 Conn. 106, 115, 139 A.2d 353 [(1958)] Newington v. Mazzoccoli, 133 Conn. 146, 150, 48 A.2d 729 [(1946)].

“That the court in an action for a declaratory judgment or a suit for injunctive relief will look at the facts existing at the time of trial is more just than unjust. The remedy of a judicial declaration of rights is to inform parties of their rights and duties so that there may be an orderly settlement of their disputes. The dispute should not be settled on the basis of a situation which no longer exists.” Edward Balf Co. v. East Granby, 152 Conn. 319, 323, 207 A.2d 58 (1965).

Although the DEP commissioner was responsible for collection of the balances in the deposit accounts from the period December 1, 2008 to July 31, 2010, the obvious focus of the plaintiffs’ declaratory judgment is prospective relief. That prospective relief necessarily involves the DRS commissioner. Although the DEP commissioner continues to have responsibilities under the amended Bottle Bill, the responsibility that is at issue here, the collection of special account balances, resides solely with the DRS commissioner.

“[Courts] do not render advisory opinions . . . Because courts are established to resolve actual controversies, before a claimed controversy is entitled to a resolution on the merits it must be justiciable. Justiciability requires . . . that there be an actual controversy between or among the parties to the dispute: Courts exist for determination of actual and existing controversies, and under the law of this state the courts may not be used as a vehicle to obtain judicial opinions on points of law . . . A case becomes moot when due to intervening circumstances a controversy between the parties no longer exists.” (Citations omitted.) Twichell v. Guite, 53 Conn.App. 42, 52, 728 A.2d 1121 (1999). At the present time, there is no actual controversy between the DEP commissioner and the plaintiffs because the DEP commission is no longer charged with collecting the special account balances. Any judgment in this CT Page 18690 action declaring the rights and legal relations between the plaintiffs and the DEP commissioner would only amount to an advisory opinion as to how the DRS commissioner should interpret the statute. The lack of an actual controversy between the parties here renders this action moot.

The fact that the DRS commissioner is not a party to this action implicates the fourth factor of relevance to the determination of justiciability, practical relief to the complainant. A declaratory judgment favoring the plaintiffs against the DEP commissioner would be of no effect against the DRS commissioner, who is not a party to this case. “The jurisdiction of the trial court is limited to those parties expressly named in the action coming before it . . . Until one is given notice of the actions or proceedings against him and is thereby given opportunity to appear and be heard, the court has no jurisdiction to proceed to judgment either for or against him even though it may have jurisdiction of the subject matter. One who is not served with process does not have the status of a party to the proceeding . . . A court has no jurisdiction over persons who have not been made parties to the action before it. Delio v. Earth Garden Florist, Inc., 28 Conn.App. 73, 77, 609 A.2d 1057 (1992).”Exley v. Connecticut Yankee Greyhound Racing, Inc., 59 Conn.App. 224, 234-35, 755 A.2d 990, cert. denied, 254 Conn. 939, 761 A.2d 760 (2000).

The plaintiffs urge the court to order that the DRS commissioner be made a party to this case. Such an order would be a simple and enticing method to obtain jurisdiction, however it would be contrary to the established principal of exhaustion of administrative remedies. As noted earlier, the Department of Revenue Services is now in charge of collecting the special account balances. Although it may utilize the same procedures adopted by the Department of Environmental Protection, the Department of Revenue Services must be given an opportunity to respond to the claims that the plaintiffs presented in the request for a declaratory ruling. See Housing Authority v. Papandrea, 222 Conn. 414, 610 A.2d 637 (1992) (the fact that commissioner stated his position on a matter in a letter did not relieve plaintiff of its obligation to pursue administrative remedies to persuade the commissioner his position was incorrect).

If the court made the DRS commissioner a party to these proceedings, the plaintiffs would be excused from exhausting their administrative remedies before the department of revenue services. As the Supreme Court has stated, “The doctrine of exhaustion is grounded in a policy of fostering an orderly process of CT Page 18691 administrative adjudication and judicial review in which a reviewing court will have the benefit of the agency’s findings and conclusions. To allow a party seeking a declaratory judgment to bypass the entire process under certain circumstances would be to interject an unnecessary and potentially confusing element into an otherwise well-defined area of the law. [The plaintiff] argues that this case presents a question solely of law and that the defendant commissioner’s fact-finding ability and expertise in the insurance field could not contribute significantly to the court’s acquittal of its historically defined role as interpreter of the law. This argument, however, while enticing, is not persuasive. Rather, we believe that stronger justification is required for us to create an exception to the present process. [The plaintiff] has failed to demonstrate any way in which it will be injured by being forced to pursue its administrative remedy. Absent a showing that its administrative remedy cannot provide adequate relief, [the plaintiff] should not be allowed to seek other relief. Furthermore, as we discussed above, the plain intent of the legislature in enacting the [Uniform Administrative Procedure Act] was to permit agencies to decide questions of law and to designate agencies, along with the Court of Common Pleas, as the principal forums for declaratory relief.” Connecticut Life Health Ins. Guaranty Ass’n. v. Jackson, 173 Conn. 352, 358-59, 377 A.2d 1099 (1977).

This court must decline the plaintiffs’ request to add the DRS commissioner as a party to this action since it would violate the principal of exhaustion of administrative remedies. The plaintiffs are not left without a remedy since they are free to bring their request for declaratory relief to the DRS commissioner pursuant to statute.

For the foregoing reasons, the court concludes that the present controversy between the plaintiffs and the defendant DEP commissioner of environmental protection is moot. The motion to dismiss is granted.

CT Page 18692