68 Conn. App. 488
CHIEF OF POLICE OF THE TOWN OF WINDHAM ET AL.
v.
FREEDOM OF INFORMATION COMMISSION ET AL.
(AC 21606)
(AC 21607)
(AC 21608)
Mihalakos, Dranginis and Daly, Js.
Syllabus
The plaintiff police chief and the plaintiff police
department appealed to the trial court from three consolidated decisions by
the defendant freedom of information commission determining that the
plaintiffs had violated the Freedom of Information Act ([Rev. to 1997] §1‑7
et seq., now §1‑200 et seq.) by failing to grant timely access to the
state sexual offenders registry. The plaintiffs had withheld disclosure until
they made an arrest in the case of an abduchon, rape and murder of an eleven
year old girl. The trial court rendered judgments dismissing the appeals, from
which the plaintiffs appealed to this court. Held that
the United States Court of Appeals for the Second Circuit having upheld a
permanent injunction barring dissemination of the registry or registry
information to the public, the plaintiffs' claim that the commission had
misconstrued the statutory exemption for records made in connection with the
investigation of a crime was moot because no practical relief could be granted
and the plaintiffs' claims of potential harm to their reputations were not of
sufficient magnitude to overcome the claim of mootness.
Argued
September 11, 2001- officially released March 5, 2002
|
Procedural Histor y
Appeals from three decisions by the named
defendant determining that the plaintiffs had violated the requirements of the
Freedom of Information Act and ordering, inter alia, that the plaintiffs
comply with those requirements by disclosing certain records to the
defendant Norwich Bulletin et al., brought to the Superior Court in the
judicial district of New Britain, where the cases were consolidated and tried
to the court, Hartmere, J.;
judgments dismissing the appeals, from which the
plaintiffs filed separate appeals to this court. Appeals
dismissed.
Richard S. Cody, for the appellants (plaintiffs).
Clifton A. Leonhardt, chief
counsel, with whom, on the brief, was Mitchell
W. Pearlman, general counsel, for the appellee (named defendant).
Trenton Wright, Jr., pro se, the appellee (defendant).
Theodore N. Phillips II, for
the appellees (defendants Norwich Bulletm et
al.).
Opinion
MIHALAKOS,
J. In these actions, the plaintiffs, the chief of police and the police
department of the town of Windham, appeal from the trial court's judgments
dismissing their three consolidated administrative appeals from three
virtually identical final decisions of the defendant freedom of information
corrunission (commission). The commission's final decisions resulted from
complaints filed pursuant to the Freedom ! of Information Act (act), General Statutes
(Rev. to 1997) § 1‑7 et seq., now § 1‑200 et seq., by the
remaining defendants, Trenton Wright, Jr., Mark Reynolds, the Norwich
Bulletin, Paul Lewis and Fox 61 News.1
On appeal, the plaintiffs claim that (1) the court improperly concluded that
General Statutes (Rev. to 1997) § 54‑102r (Megan's Law)2 and General Statutes (Rev. to 1997) §1‑19 (b)
(3), now §1‑210 (b) (3), 3 require them to disclose the state's sexual
offenders registry (registry), (2) the court further misconstrued § 54‑102r
to require records to be made solely in the public interest and not for police
use in the detection or investigation of crime, (3) the commission's
prospective orders prevent the plaintiffs' appeals from being moot and (4)
disclosure of the registry would have impaired the division of criminal
justice in resolving the underlying homicide case. Because subsequent
changes in the law and the unlikelihood of further consequences to the
plaintiffs have obviated any practical relief that this court may have
granted, we dismiss the appeals as moot.4
The
following facts and procedural history are relevant to the disposition of
the plaintiffs' appeals. The consolidated appeals arise out of the abduction,
rape and murder of an eleven year old girl in Willimantic on August 13, 1998.
Police discovered the girl's body early on August 14, 1998, and extensive
media coverage quickly followed. On that day and on subsequent days, the
defendant Fox 61 News requested that the plaintiffs releas,e their most
current registry, which was, at that time, a public record registered with the
police as required by Megan's Law. See footnote 2. The defendants, the
Norwich Bulletin and Wright, made similar requests on August 18 and August 20,
1998, respectively. The requesting defendants were denied access to the
registry until August 28, 1998, following the August 26, 1998 arrest of a
suspect in connection with the homicide.
The
requesting defendants filed complaints with the commission alleging that the
plaintiffs had violated the act by failing to grant timely access to the
registry. On December 22, 1998, the commission issued notices of final
decisions on the complaints. The commission concluded in each case that the
plaintiffs had violated the act when they refused access to the registry
because it was a public record under the act and was required to be released
upon request, as it did not fit under any exemption allowing nondisclosure.
The commission found specifically that the exemption claimed by the
plaintiffs, allowing nondisclosure of records made in connection with the
investigation of crime,5
did not apply because the registry was made before the underlying events
occurred and it existed, therefore, independent of any investigation being
conducted by the plaintiffs. The commission also ordered the plaintiffs to
comply with the act in the future, but it did not impose civil penalties and
noted that they had acted in good faith under great pressure.
On
February 4, 1999, the plaintiffs filed administrative appeals with the court,
challenging the commission's final decisions. On May 27, 1999, the court, Sferrazza, J., declined to dismiss the appeals as moot and denied
the defendants' motion to dismiss. Judge Sferrazza reasoned that although
the enactment of Public Acts 1998, No. 98‑111, § 9, codified at General
Statutes (Rev. to 1999) § 54‑258,6 precluded further controversy regarding the
disclosure of the registry, the commission's prospective orders to comply
generally with the act could predicate harsher consequences to the plaintiffs
for other future violations, despite the unlikelihood that the same violation
will occur again. Nonetheless, the court, Hartmere,
J., on January 12, 2001, dismissed the appeals on the merits and found, in
accord with the commission, that the plaintiffs were not exempt from producing
the registry under General Statutes (Rev. to 1997) § 1‑19c, now § 1‑201,7
or under § 1‑19 (b) (3). Judge Hartmere concluded that § 1‑19c
did not apply because the registry was clearly compiled and maintained as an
administrative function of the plaintiffs pursuant to § 54‑102r. Judge
Hartmere also concluded that § 1‑19 (b) (3) was
inapplicable because the registry was not originally compiled for crime
detection or investigation, but rather its purpose, flowing from the
legislative history of Megan's Law and its subsequent amendments, was rooted
in the dissemination of information to keep children and the general
community safe. Consequently, Judge Hartmere concluded that the registry
should have been timely released and that the appeals warranted dismissal.
These appeals followed on February 1, 2001, and were consolidated on March 28,
2001.
I.
The
plaintiffs first make two separate but essentially redundant claims that the
court misconstrued § 54‑102r and, therefore, misapplied § 1‑19
(b) (3). Because no practical relief may be granted, we decline to address
those issues and dismiss the appeals as moot.
Our
standard of review regarding mootness is well settled. "Mootness
implicates [this] court's subject matter jurisdiction and is thus a
threshold matter for us to resolve.... [T]he existence of an aetual
controversy is an essential requisite to appellate jurisdiction . . . ."
(Internal quotation marks omitted.) Giaimo
v. New Haven, 257 Conn. 481, 492, 778 A.2d 33 (2001). "It is beyond
question that we are without jurisdiction to issue advisory opinions [or to]
decide moot questions, disconnected from the granting of actual relief or from
the determination of which no practical relief can follow." (Internal
quotation marks omitted.) State v.
Hopkins, 62 Conn. App. 665, 679, 772 A.2d 657 (2001). In other words,
the "[t]est for determining mootness is not [w]hether the [plaintiffs]
would ultimately be granted relief [but] whether there is any practical relief
this court can grant the [plaintiffs]." (Internal quotation marks
omitted.) In re Amelia W., 62 Conn.
App. 50O, 505, 772 A.2d 619 (2001).
Courts,
however, have developed an exception to the mootness rule for recurring
questions that would otherwise completely evade review. "[F]or an
otherwise moot question to qualify for review under the 'capable of
repetition, yet evading review' exception, it must meet three requirements.
First, the challenged action, or the effect of the challenged action, by its
very nature must be of a limited duration so that there is a strong likelihood
that the substantial majority of cases raising a question about its validity
will become moot before appellate litigation can be concluded. Second, there
must be a reasonable likelihood that the question presented in the pending
case will arise again in the future, and that it will affect either the same
complaining party or a reasonably identifiable group for whom that party can
be said to act as surrogate. Third, the question must have some public
importance." (Internal quotation marks omitted.) Board
of Education v. State Board of Education, 243 Conn. 772, 777‑78, 709
A.2d 510 (1998).
The
plaintiffs argue that the court misconstrued the law applicable at the time of
the underlying events. The commission found that Megan's Law required the
plaintiffs to disclose the registry at all relevant times,8 and the court agreed, stating that § 54‑102r,
as amended by No. 97‑183 of the 1997 Public Acts, was intended clearly
to require disclosure of the registry to the public. We need not reach the
soundness of those conclusions because even if we were to conclude that they
were incorrect, subsequent developments in the law as a result of a decision
by the United States Court of Appeals for the Second Circuit have rendered the
plaintiffs' claims moot. Those developments have dispelled any confusion the
plaintiffs may yet harbor in relation to their disclosure duties. Further, the
developments have significantly diminished any potential harm the plaintiffs
may face from the commission's decisions regardless of whether they were
incorrect.
While a decision as to the plaintiffs' consolidated appeals was pending, the Second Circuit upheld a permanent irgunction against the full application of Megan's Law.9 The injunction primarily prevents the further dissemination of the registry or registry information to the public. Doe v. Dept. of Public Safety, 271 F.3d 38, 62 (2d Cir. 2001). The court concluded that Connecticut's version of Megan's Law is too broad a means of fulfilling its purpose of protecting the health and welfare of the state's children. Id., 41‑42. The court further held that our law "fails to accommodate the constitutional rights of persons formerly convicted of a wide range of sexual offenses who are branded as likely to be currently dangerous offenders irrespective of whether or not they are.''l0 Id.; see footnote 9.
The
Second Circuit's decision to uphold the injunction renders the plaintiffs'
claims moot because no practical relief may be granted to the plaintiffs
even if we were to use the irgunction as a basis for reversing the decisions
of the court and the commission. Although we recognize the importance of the
Second Circuit's decision in Doe, a
determination of whether the court, and thereby the commission, incorrectly
applied the law in these instances 11 is unnecessary because it would amount to a
"determination [from] which no practical relief can follow."
(Internal quotation marks omitted.) State
v. Hopkins, supra, 62 Conn. App. 679. Specifically, because the injunction
now prevents the plaintiffs and other similarly situated state actors from
disseminating the registry or registry information to the public, a
determination as to the proper application of a disclosure exemption of the
act as it relates to the registry is contextually meaningless. Further, as
discussed in part II, reversing the judgments of the trial court at this
juncture serves only to enhance potentially the reputation of the plaintiffs
and not the ends of justice, as the plaintiffs were not appreciably harmed by
the commission's decisions and they are unlikely to face hardship from those
decisions in the future. Therefore, the issues regarding whether the court or
the commission misconstrued the earlier version of Megan's Law in relation
to the act's exemption provisions are moot, and further review would waste
judicial resources imprudently and serve no practical purpose.
II
Nonetheless,
the plaintiffs claim that review is required because the commission's
prospective orders prevent their appeals from being moot, and this court may
offer practical relief by reversing the judgments of the trial court and
clearing their names in the event of future violations of the act. See
generally Domestic Violence Services of Greater New Haven, Inc. v. Freedom of
Information Commission, 240 Conn. 1, 9, 688 A.2d 314 (1997) (Appellate
Court judgment of mootness reversed because prospective order remained in
controversy), on remand, 47 Conn. App. 466, 704 A.2d 827 (1998). Our Supreme
Court has recognized, however, that a controversy involving prospective orders
can become moot by "a change in circumstances subsequent to the
[commission's] decision ...." Id., 9 n.10. Therefore, the present case is
unlike the situation in Domestic
Violence Services of GreaterNew Haven, Inc., because here the prospective
orders, in relation to the operation of Megan's Law in conjunction with the
provisions of the act, were rendered inert by the subsequent permanent
injunction that was upheld by the Second Circuit. Moreover, it is not within
our province to intercede on behalf of the plaintiffs merely because
prospective orders could result in harsher consequences from future
controversies, especially when, with respect to the interaction between
Megan's Law and the act, the potential for such conflicts is now exceedingly
slim.l2 Accordingly,
the plaintiffs' appeals do not meet the second prong of the mootness
exception because the current state of the law obviates the concern, in all
reasonable likelihood, that the issues raised here will arise again.
Furthermore,
this is not a situation in which the "potential for harm to the
[plaintiffs] if we spurn [their] appeal[s] is of sufficient magnitude to
overcome any claim of mootness." State v. Reilly, 60 Conn. App. 716, 725, 760 A.2d 1001 (2000). In
light of the commission's recognition of the plaintiffs' good faith and the
pressure under which they acted, it does not appear to this court that the
commission's final decisions or its prospectiveorders will promulgate
prejudice against the plaintiffs, as they have contemplated. Thus, even if
this court, arguendo, overruled the trial court and, thereby, the commission,
the effect on the plaintiffs of these events is unchanged, as their
reputations apparently have been unstained by these proceedings.
III
The
plaintiffs' final claim is that disclosure of the registry may have impaired
the division of criminal justice in resolving the underlying homicide. This
court need not address that issue because the division of criminal justice is
not a party to these appeals, and the plaintiffs do not have standing to raise
issues regarding harm to others. See Russell
v. Yale University, 54 Conn. App. 573, 576‑77, 737 A.2d 941 (1999).
Therefore, after reviewing the record on appeal, evaluating the briefs and
arguments of the parties, and accounting for the recent decision of the Second
Circuit, we conclude that no practical relief is available to the plaintiffs
and that these appeals are nonjusticiable.
The appeals are dismissed as moot.
In this opinion the other judges concurred.
Footnotes
1.
After a young girl was found dead in August, 1998, the defendants Wright,
Reynolds, the Norwich Bulletin, Lewis and Fox 61 News requested that the plaintiffs allow them aecess to the state's sexual offenders regishy. Following the plaintiffs’ refusal to do so, those defendants filed complaints with the commission. Wright is the father of two children similar in age to the victim of the alleged homicide. The children resided in the immediate area of the alleged crime. Except for Wright and the commission, the other defendants are media outlets or members of the media.
2 General Statutes (Rev. to 1997) § 54‑102r concerned the registration of sexual offenders and was popularly known as Megan's Law. That statute as amended by No.97‑183 of the 1997 Public Acts, was repealed and replaced by law enacted under No.98‑111 of the 1998 Public Acts, which was codffied as the new Megan's Law under General Statutes § 54‑250 et seq. and has been effective since October 1, 1998. Slight modffications to the law were made under No. 99‑183 of the 1999 Public Acts, which became effective July 1, 1999.
3 It is apparent that the plaintiffs, although referencing General Statutes § 1‑210 (b) (4) of the act in their statement of issues and the first heading of their argument, actually are referring to General Statutes (Rev. to 1997) § 1‑19 (b) (3), now § 1‑210 (b) (3). Section 1‑19 (b) (3) provides in relevant part that disclosure is not required of "records of law enforcement agencies not otherwise available to the public which records were compiled in connection with the detection or investigation of crime, ff the disclosure of said records would not be in the public interest because it would result in the disclosure of isensitive informationl ...."
4
We note at the outset that although the parties have neither raised nor
briefed the issue of mootness, we have raised it sua sponte because mootness
implicates this court's subject matter jurisdiction and must be addressed. See
Lucarelli v. Freedom of Information Commission, 29 Conn. App. 547,
548 n.2, 616 A.2d 816 (1992), cert. denied,225 Conn.901,621 A.2d 284 (1993).
We further note that we are aware of our Supreme Court's holding in Lynch
v. Granby Holdings, Inc., 230 Conn. 95, 98‑99, 644 A.2d 325 (1994),
which reversed this court's judgment that a new trial was required due to
plain error committed by the trial court in a case involving the propriety a
jury's verdict. Noting that this court could consider only the infirmity of
the jury's verdict if it concluded that the trial court had committed plain
error in acceptingit, our Supreme Court stated: "In
the absence of a question relating to subject matterjurisdiction, the
Appellate Court had only.limited
authority to reach the issue of possible confusion in the jury's
verdict." (Emphasis added.) Id., 97‑98. Our Supreme Court based its
reversal in part on the fact that this court did not invite the parties to
brief the issue of plain error, which we had raised below sua sponte. Id., 99.
Unlike Lynch, however, the present
case concerns subject matter jurisdiction, and that issue requires our
independent review whenever and however it is raised. See In re Shawn S., 66 Conn. App. 305, 309, 784 A.2d 405 (" '[w]henever
a court discovers that it has no jurisdiction, it is bound to dismiss the case
. . .'"), cert. granted on other grounds, 258 Conn. 948, A.2d (2001).
Further, in matters involving subject matter jurisdiction, we have exercised
our discretion in determining whether to order parties to brief the issue or
to decide the issue in lieu of such an order. See Grabowski v. Bristol, 64 Conn. App. 448,450, 780A.2d 953 (2001)
(question of subject matterjurisdiction requires court's independent review
despite having not been raised by party on appeal); Lucarelli v. Freedom of Information Gommission, supra, 548 n.2.
5 The plaintiffs claimed that the registry was exempt from the disclosure requirements of the act pursuant to General Statutes (Rev. to 1997) §1‑19 (b) (3), now §1‑210 (b) (3). See footnote 3.
6 Public Acts 1998, No.
98‑111,
§ 9, codified at General Statutes (Rev. to 1999) § 54‑258, provides in
relevant part: "(a) (1) Notwithstanding any other provision of the
general statutes, the registry maintained by the Department of Public Safety
shaU be a public record and shall be accessible to the public during normal
business hours. The Department of Public Safety shall make registry
information available to the public through the Internet. Not less than once
per calendar quarter, the Department of Public Safety shall issue notices to
all print and electronic media in the state regarding the availability and
means of accessing the registry. Each local police department and each state
police troop shall keep a record of all registration infonnation transmitted
to it by the Department of Public Safety, and shall make such information
accessible to the public during normal business hours...."
7 General Statutes (Rev. to 1997) § 1‑201, now § 1‑19c,
provides in relevant part that "the Division of Criminal Justice shall
not be deemed to be a public agency except in respect to its administrative
functions."
8 The plaintiffs' assertion that the commission ignored their exemption
defense is without merit because the commission clearly found that General
Statutes (Rev. to 1997) §1‑19 (b) (3), now §1‑210 (b) (3), did
not apply.
9
See generally Doe v. Dept. of Publte
Safety, 271 F.3d 38 (2d Cir. 2001). In Doe, a person listed OIl the registry as a sex offender challenged
the constitutionality of Connecticut's Megan's Law on procedural due process
grounds under the fourteenth amendment to the United States constitution and
sought a permanent injunction on the dissemination of the registry to the
public. The United States District Court for the District of Connecticut had
granted summary judgment to the plaintiff and ordered the injunction. Id., 46.
In upholding the injunction, the Second Circuit concluded that Connecticut's
Megan's Law registry implied, as published to the public on the Internet and
in printed form, that each person listed on the registry was more likely than
the average person to be currently dangerous. Id., 41‑42. The court
ultimately concluded that publication of the registry to the public violates
the due process rights of each listed person until a hearing or other
procedurally adequate opportunity is afforded to those persons to address the
veracity of the registry's implication. Id., 62. The court noted that to
comply with the upheld injunction and renew publication to the public,
"Connecticut will likely adopt new procedures more sensitive to whether
those on a widely disseminated registry are likely to be currently
dangerous." Id. 61.
10
In Connecticut state courts, great weight is afforded to the decisions of the
Second Circuit as to matters involving the federal constitution. State
v. Faria, 254 Conn. 613, 625 n.l2, 758 A.2d 348 (2000).
11
See Presnick v. Freedom of Information Commission, 53 Conn. App. 162,
164, 729 A.2d 236 (1999) (standard of appellate review for trial court review
of commission decisions).
12 In point of fact, the permanent irgunction that was upheld by
the Second Circuit prevents the plaintfffs from running afoul of the act in
regard to the registry because now it cannot be released to the public. It
will be soon enough to deal with actual controversies when and if publication
of the registry to the public is reinstated, instead of assuming that
controversies do or will exist where there can be none under the current law.