2008 Ct. Sup. 18432
No. CV 08-5008375-SConnecticut Superior Court Judicial District of New Britain at New Britain
November 21, 2008
MEMORANDUM OF DECISION RE DEFENDANTS’ MOTION TO STRIKE #103
TANZER, J.
Before the court is the defendants’ motion to strike this action, an Application for Writ of Mandamus, on grounds that it fails to state a claim upon which relief can be granted because 1) the plaintiffs do not have a clear legal right to the performance of the duty alleged in their writ; 2) the defendants have discretion with respect to the performance of the duty alleged; 3) a writ of mandamus cannot be used to challenge the legality of an appointment; and 4) the plaintiffs have failed to join an indispensable party. Both parties filed memoranda of law on the issue and were heard at oral argument.
“Whenever any party wishes to contest (1) the legal sufficiency of the allegations of any complaint, counterclaim or cross claim, or of any one or more counts thereof, to state a claim upon which relief can be granted, or (2) the legal sufficiency of any prayer for relief in any such complaint, counterclaim or cross complaint, or (3) the legal sufficiency of any such complaint, counterclaim or cross complaint, or any count thereof, because of the absence of any necessary party . . . that party may do so by filing a motion to strike the contested pleading or part thereof.” Practice Book § 10-39. “The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted.” (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498 (2003).
The allegations in the Application for Writ of Mandamus are as follows. The plaintiffs are firefighters and employees of the defendant City of New Britain. (“City.”) The defendant Civil Service Commission (“Commission”) is responsible for conducting all entry level and promotional examinations. On June 4, 2007, the Commission certified Employment List No. 1108 for the promotional position of Fire Lieutenant. (“The List.”) The plaintiffs were among fifteen firefighters who passed the competitive promotional exam and were certified on the CT Page 18433 List for the position of Fire Lieutenant. There were six vacancies for the position of Fire Lieutenant. Pursuant to the Rules of the Civil Service Commission, the Rule of Five Plus Three applied to the List.[1]
Defendant Chief Mark Carr (“Carr”) made appointments for each of six vacancies from List No. 1108 in a manner contrary to the Merit Rules for the Civil Service Commission. Carr appointed Candidate #14 in a manner contrary to the Merit Rules for the Civil Service Commission. During September of 2007, Defendant Karen Levine, Personnel Director for the City, removed seven names from the List, including the names of the plaintiffs. Plaintiffs appealed the removal of names from the List to the Commission which sustained the appeal and ordered the names reinstated to the List. Plaintiffs’ names were off the List from September 2007 to April 8, 2008. The plaintiffs requested a one-year extension of the List which was set to expire on June 3, 2008, which request was denied by the Commission.
The plaintiffs filed this Application for Writ of Mandamus on June 3, 2008, seeking orders to compel the City 1) to extend the List for a period of eight months; and 2) to comply with the Civil Service Rules by deeming the effective date of the promotion of Candidate #14 to be no earlier than the date he may have been considered eligible in accordance with the Civil Service Rules.
The focus of the defendants’ motion to strike with respect to the remedy requesting an extension of the List for a period of eight months is that the plaintiffs do not have a clear legal right to have the duty performed and the defendants have discretion as to the performance of the duty alleged. A writ of mandamus is proper only when “(1) the law imposes on the party against whom the writ would run a duty the performance of which is mandatory and not discretionary; (2) the party applying for the writ has a clear legal right to have the duty performed; and (3) there is no other specific adequate remedy.” (Citations omitted; internal quotation marks omitted.) Miles v. Foley, 253 Conn. 381, 391, 752 A.2d 503
(2000). The defendants argue that mandamus is not proper because the List which expired on June 3, 2008, was in effect for one year as required by the Rules of the Commission and because extension of the List was within the discretion of the Commission. The plaintiffs counter that under the rules the defendants had a duty to maintain a certified promotional list for one year and that the plaintiffs had the right to remain on the certified promotional list for a period of one year.
Reading the complaint and construing the facts most favorably to the plaintiffs, as the court must do; Faulkner v. United Technologies Corp., 240 Conn. 576, 580 (1997); the plaintiffs sufficiently allege a violation of a duty and their right to have that duty performed. The CT Page 18434 parties have not pointed to any other specific remedy than the one sought here. Accordingly, mandamus is proper.
With respect to the remedy sought that the City “be ordered to comply with its Civil Service rules in all appointments from this list, [n]amely, that the promotion of Candidate #14 be deemed effective no earlier than the date he may have been considered eligible in accordance with the Defendant’s Civil Service Rules,” the defendants contend the plaintiffs cannot use mandamus to challenge the appointment of an individual and further they claim the plaintiffs have failed to join an indispensable party. “[M]andamus will not lie to determine the title of an incumbent to an office.” State ex rel Comstock v. Hempstead, 83 Conn. 554, 558 (1910). Rather, a quo warranto action unseats an illegal public office holder and declares the position vacant. Beccia v. Waterbury, 185 Conn. 445, 456-57 (1981).
The plaintiffs counter they are not challenging the legality of the appointment of Candidate #14 or seeking his removal from the position of Fire Lieutenant. They concede that if they were seeking to challenge the legality of the appointment, the motion to strike this portion of the writ would be tenable. They also claim that Candidate #14 is not an indispensable party because they are not attempting to divest him of his appointment. Rather they “aver only that this promotion was made prior to his becoming eligible under the civil service rules.”
“`[A]s set forth in Practice Book § 10-39, the exclusive remedy for nonjoinder of parties is by motion to strike.’ Practice Book § 11-3.”Bauer v. Souto, 277 Conn. 829, 839, 896 A.2d 90 (2006). “This exclusive remedy applies to nonjoinder of indispensable parties.” George v. St. Ann’s Church, 182 Conn. 322, 325, 438 A.2d 97 (1980). “[A] party is necessary if its presence is absolutely required in order to assure a fair and equitable trial.” (Internal quotation marks omitted.) Biro v. Hill, 214 Conn. 1, 6, 570 A.2d 182 (1990). “Parties have been termed indispensable when their interest in the controversy is such that a final decree cannot be made without either affecting that interest or leaving the controversy in such condition that its final disposition may be inconsistent with equity and good conscience.” (Internal quotation marks omitted.) Hilton v. New Haven, 233 Conn. 701, 722, 661 A.2d 973
(1994).
The plaintiffs argue that Candidate #14 will suffer no impact other than his effective date of promotion. The defendants argue, and not without basis in logic, that what is deemed to be the effective date of Candidate #14’s appointment is linked to the date of his eligibility and the date of his eligibility is linked to the make up and duration of the CT Page 18435 List and, ultimately, dependent on the outcome of this case. Additionally, a change in the effective date of the appointment would impact on entitlements. As such, Candidate #14 has an interest in this controversy which may be affected by a final decree in this case and he is, therefore, an indispensable party.
The motion to strike is denied as to the prayer for relief seeking an order “That the City of New Britain immediately extend Employment List No. 1108 for a period of eight months commensurate with the amount of time Plaintiffs were improperly removed from the list.”
The motion to strike is granted as to the prayer for relief seeking an order “That the City of New Britain be ordered to comply with its Civil Service rules in all appointments from this list. Namely, that the promotion of Candidate #14 be deemed effective no earlier than the date he may have been considered eligible in accordance with the Defendant’s Civil Service Rules.”
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