Opinion
No. CV-08-4030652-S
May 9, 2008
MEMORANDUM OF DECISION
This action arises out of the effort of Robert M. Nappe, a former East Haven police officer, to be reinstated as a member of the East Haven Police Department following his having returned from employment as a Police Advisor in Iraq after having previously retired from the force in order to pursue that employment. He claims a legal right to reinstatement pursuant to General Statutes Sec. 7-294aa, which provides.
Any sworn police officer employed by the state or municipality who takes a leave of absence or resigns from such officer's employment to volunteer for participation in international peacekeeping operations, is selected for such participation by a company which the United States Department of State has contracted with to recruit, select, equip and deploy police officers for such peacekeeping operations, and participates in such peacekeeping operations under the supervision of the United Nations, the Organization for Security and Cooperation in Europe or other sponsoring organization, shall be entitled, upon return from such leave, (1) to be restored by such officer's employer to the position of employment held by the officer when the leave commenced, or (2) if the original position of employment is not available, to be restored to an equivalent position with equivalent benefits, pay and other terms and conditions of employment.
When his efforts at reinstatement were rebuffed, he brought suit, and the trial court, A. Robinson, J., granted a writ of mandamus ordering the Board of Police Commissioners to reinstate him. The Board of Police Commissioners, the only defendant remaining in the case at the time that the court entered judgment (the claims against the Town and former Mayor having been withdrawn) appealed to the Appellate Court, and the Supreme Court thereupon transferred the appeal to itself.
With the election of a new Mayor, April Capone Almon ("Capone Almon," or "the Mayor") in 2007, Nappe's fortunes appeared to change. The new Mayor hired Nappe's trial lawyer, Patricia Cofrancesco, to replace Lawrence Sgrignari as Town Attorney. Attorney Robert Pinciaro undertook to represent Nappe and in March of 2008, Pinciaro and the Mayor entered into negotiations aimed at Nappe's return to the East Haven Police Department. When the Board of Police Commissioners and Sgrignari, who had remained the Board's counsel despite his replacement as Town Attorney, raised concerns about such an arrangement, noting that it was only the Board, and not the Town or the Mayor, that had the authority to authorize reinstatement, the Mayor replaced Sgrignari with another attorney of her own choosing, James Cirillo. Cirillo filed what he termed an appearance "in lieu of" Sgrignari's appearance as well as what purported to be a withdrawal of the appeal. The Board then authorized the hiring of separate counsel to resolve its conflicts with the Mayor and the Town over this issue. That counsel filed the application for injunctive relief that is presently before the court.
The court has not been made aware of any claim that Cofrancesco participated in or in any way improperly influenced the decision to attempt to return Nappe to police duty.
On April 7, 2008, the undersigned entered an ex parte order enjoining the Defendants from taking any further action to interfere with, undermine, hinder the prosecution of or withdraw the Board's appeal to the Supreme Court; from taking any further action to interfere with, undermine or usurp the Board's decision-making authority with regard to the appointment of Nappe as an East Haven Police Officer; and from taking any action to hire Nappe as an East Haven Police Officer without the advance consent and approval of the Board. The Defendants seek to dismiss this action based on their contention that the Board's claims are moot, since by the time the ex parte injunction entered in this case, Robert Nappe had already been reinstated to his position as an Officer in the East Haven Police Department and the Supreme Court appeal had been withdrawn. Should that argument fail, they seek to have the injunction dissolved based on their contention that the Board has not met the criteria for granting of injunctive relief.
The court has been made aware of the fact that Nappe's situation has engendered strong sentiments within the Town of East Haven and even beyond its borders. That issues of politics and personality have influenced the decisions made by local officials throughout this matter is undeniable, and Nappe's motives have been both lauded as patriotic and criticized as mercenary. Although the court feels that it is regrettable in the extreme that reasonable minds have not found a way to put aside all of these differences and achieve an amicable resolution, none of these issues are or can be considerations for this court in the case currently before it. Rather, the issue before this court is whether the Board is entitled to injunctive relief that restrains the Town and the Mayor from taking over, and then abandoning, the Board's appeal of Judge Robinson's decision so as enable them to reinstall Nappe as a police officer without either the Board's acquiescence or a mandate from the Supreme Court. This is an issue that must be decided on the basis of the law, and not politics, personality or a sense of which party is entitled to claim the moral high ground. The court concludes that the law dictates that the plaintiff is entitled to maintain its injunction, with some modifications.
To assist the court in its ability to move expeditiously to the legal issues involved in this case, the parties were able to agree upon an 81-item "Stipulation of Facts," with attachments, that eliminated the need for the court to have to take testimony or to receive any additional documents into evidence, and, enabled it to hold a prompt hearing on both the motion to dismiss and the merits of the claim for injunctive relief on May 5, 2008. The court appreciates and respects the efforts undertaken by counsel to achieve this objective over a very short period of time.
The Stipulation of Facts and Exhibits are on file, but for purposes of this decision, the court will summarize the agreed-upon factual background, as follows.
The Board is, and at all times relevant hereto was, a commission established pursuant to the Charter for the Town of East Haven, exercising powers granted to the Board by the Charter. The Town is, and at all times relevant hereto was, a municipality organized and existing pursuant to the laws of the State of Connecticut. The Mayor is, and at all times since November 2007, has been the Mayor of the Town, exercising powers granted to the Mayor by the Charter.
Robert Nappe ("Nappe"), who is not a party to this case, filed a civil action against the Board, entitled Robert Nappe v. East Haven Board of Police Commissioners (New Haven Superior Court docket number CV-05-4008609-S) (the "Action"). Following a trial, the court, A. Robinson, J., granted Nappe's request for a writ of mandamus ordering the Board to reinstate Nappe to the position of East Haven Police Officer (the "Decision") over the Board's objection. At all times, Attorney Lawrence C. Sgrignari ("Sgrignari") represented the Board in the Action and had also initially represented the Town and the Town's prior Mayor, Joseph Maturo, Jr. (" Maturo"), in the Action, prior to Nappe's withdrawing the claims against the Town and Maturo.
The Stipulation of Facts recites this as the case caption, but a review of the court file reveals that the first named defendant is the Town of East Haven and that the court file's case caption has been Robert Nappe v. Town of East Haven, et al. throughout its pendency in the New Haven Judicial District as well as on appeal.
The action was also withdrawn against another original defendant, Police Chief Leonard Gallo, and not pursued against yet another original defendant, the Town's Civil Service Commission, neither of whom had appeared in the Action.
Maturo, who was Capone Almon's immediate predecessor, had appointed Sgrignari to serve as Town Attorney in his administration. Upon her election, Capone Almon replaced Sgrignari with Cofranceso and also appointed Assistant Town Attorneys of her own choosing.
The Board had authorized the Decision to be appealed by Sgrignari on its behalf, and Sgrignari consulted with Mayor Maturo in connection with the Board's authorization of the appeal. Prior to Capone Almon's election as Mayor, Maturo made an oral agreement with Sgrignari regarding the legal fees associated with the appeal of the Decision, in which Sgrignari essentially capped his fees at $10,000, even though, given the time he had already spent on the case, he would, absent the agreement, have been entitled to bill for a larger sum. Based on this agreement, Sgrignari's $10,000 fee was approved for payment.
The Board opposed and continues to oppose Nappe's appointment or reinstatement as an East Haven Police Officer. Acting by and through Sgrignari, with the approval of Maturo, the Board appealed the Decision to the Appellate Court on or about May 2, 2007. The Supreme Court subsequently transferred the appeal to its own docket for determination under Supreme Court docket number S.C. 17926 (the "Appeal"). Sgrignari has already filed the Board's appellate brief with the Supreme Court and is prepared to, and at all times has been instructed by the Board to, proceed with the Appeal through to its conclusion.
On December 4, 2007, Capone Almon wrote to Sgrignari to inform him that she had retained "Labor Counsel" David A. Ryan, Jr. ("Ryan") to advise her regarding the Nappe matter, but Ryan did not file an appearance for the Board in the Action or in the Appeal. On December 28, 2007, Mayor Capone Almon met with Sgrignari and Ryan and discussed the Appeal.
On March 17, 2008, Nappe's new legal counsel, Robert C. Pinciaro ("Pinciaro"), wrote to Sgrignari with an offer to forego any claims for back pay in exchange for a withdrawal of the appeal and reinstatement of Nappe as a member of the police force. Nappe's claim for back pay had already been stricken from his complaint in a decision by Judge Devlin dated May 31, 2006. Sgrignari promised to discuss Pinciaro's offer with the Board, and, on March 27, 2008, he wrote to Pat Romano, Chairman of the Board, requesting the opportunity to discuss the proposal with the Board in executive session. Sgrignari sent a copy of that letter to Ryan.
On March 18, 2008, Ryan faxed Pinciaro's proposal to the Mayor. On March 20, the Mayor sent Attorney James Cirillo a letter notifying him of his appointment as Town Attorney with respect to several matters, including the Nappe appeal, but did not send copies to either the Board or Sgrignari. On March 27, 2008, she notified Sgrignari by letter that his "services are no longer required" in the Nappe matter and that Cirillo had filed an "in lieu of" appearance in connection with the Appeal. Neither the Mayor nor Cirillo had advised or informed either Sgrignari or the Board that she intended to replace Sgrignari as the Board's legal counsel in the Appeal with another attorney in advance of her March 27 letter. Cirillo indeed filed an "in lieu of" Appearance on behalf of the Town (but not the Board), as well as what purported to be a Withdrawal of the appeal on behalf of the Town, on March 27. Although the Appeal is captioned Robert Nappe v. Town of East Haven, however, the Town had been removed as a defendant in the Action in January of 2006, and it is not named as a party to the Appeal.
Also on March 27, 2008, Nappe had signed a release of his claims for back pay, in accordance with the proposal made by Pinciaro, although the Board never agreed to Nappe's "return[ing] to work" as stated in the release. The Board was never presented with the release for review or approval before its execution.
On March 28, 2008 Sgrignari wrote to the Chief Clerk of the Supreme Court to express his and the Board's concern about the validity of the purported "in lieu of" appearance and withdrawal, sending a copy of his letter to Cirillo. He also wrote to the Mayor, informing her of his belief that she did not have the authority to discharge him from his representation of the Board or to authorize Cirillo to file an appearance in his stead, again sending a copy to, inter alia, Cirillo.
Also on March 28, 2008, the Board held a 1:00 P.M. emergency meeting to address the situation concerning the Appeal. Notice of the meeting was given to the public that same day, including notice to the Mayor. At that meeting, the Board passed three resolutions, one authorizing Sgrignari to continue as its counsel in connection with the Appeal, the second to the effect that Cirillo was not authorized to act on its behalf with respect to the Appeal, and the third authorizing the retaining of the law firm of Berchem, Moses and Devlin, P.C., to represent it in connection with conflicts with the Mayor arising out of her attempt to settle the Appeal without the Board's agreement.
On March 29, 2008, Sgrignari sent a fax to Cirillo advising him that the Town was neither a defendant nor the appellant in the Appeal and questioning Cirillo's authority to appear and to seek to withdraw the Appeal. He urgently asked Cirillo to call him.
On March 31, 2008, pursuant to Rule 62-9 of the Rules of Appellate Procedure, which rule permits an attorney to object to the filing of an in lieu of appearance purporting to replace him or her within ten days of notice of the substitute appearance, Sgrignari filed an objection to Cirillo's "in lieu of" Appearance. On the same day, Cirillo filed a revised "in lieu of" appearance in the Appeal, this time purportedly on behalf of the Board, together with a revised Withdrawal. On April 3, 2008, Sgrignari filed a renewed objection to the revised "in lieu of" Appearance and Withdrawal filed by Cirillo. There has been no ruling to date by the Supreme Court regarding the Board's objection to Cirillo's appearance.
On April 3, 2008, the Mayor wrote to the Town's Police Chief, Leonard Gallo ("Gallo"), advising him that the Appeal had been withdrawn and that Gallo should "do that which is necessary" to return Nappe to work and to issue him all necessary equipment, including his badge. Gallo replied on April 4, 2008, indicating his willingness to cooperate, but he cautioned the Mayor with regard to certain liability issues that necessitated the scheduling of both a physical and psychological examination of Nappe, and he also expressed his concern about the legality of the reinstatement.
On April 4, 2008, Mark Kovack, the attorney retained by the Board to deal with its conflict with the Mayor, sent a fax to East Haven Town Attorney Patricia Cofrancesco ("Cofrancesco") informing her that he was about to file the present application for an injunction, and he indeed filed that application in this court that same day. Kovack also delivered copies of the lawsuit to Federal Express for delivery to Cofrancesco and the Defendants on April 7, 2008. Sgrignari also faxed a letter to Cirillo's office on April 4, advising him that he had checked with the Appellate Clerk's office, and that as of that writing, the withdrawal of the Appeal had not been processed.
On April 4, 2008, the State of Connecticut Police Officer Standards and Training Council wrote Chief Gallo to advise him that Nappe needed only to make up any firearms training he might have missed, if any, in order to be reinstated. On the morning of April 7, 2008 Nappe reported to work at the East Haven Police Department and was given a gun and badge by Chief Gallo. Gallo then wrote to the Mayor to inform her that Nappe had been reinstated but also requesting that a written decision from either the Board or the Court be sent to the Police Officer Standards and Training Council, as required by it. That afternoon, however, the undersigned granted the ex parte injunction filed by the Board ordering that Nappe not be reinstated, restraining the Town and Mayor from replacing Sgrignari with Cirillo, and restraining the defendants from withdrawing the Appeal until further order of the court. Kovack immediately faxed Cofrancesco to advise her of the undersigned's decision, and copies of the lawsuit were delivered by Federal Express to each of the Defendants and Cofrancesco on April 7, 2008. Kovack provided Cofrancesco and Chief Gallo with a copy of the signed injunction on April 8, and the Mayor also received a copy that day.
Also on April 8, Dr. Martin H. Klein sent a letter to the Mayor notifying her that he had examined Nappe and found him psychologically fit for any kind of police duty, effective immediately, and Dr. Patrick Asiedu sent a "to whom it may concern" letter reporting his findings that Nappe was physically fit for any kind of police duty. On the same day, the Mayor sent a letter to the State of Connecticut Police Officer Standards and Training Council purporting to enclose the "documents with the decision from the court to reinstate Officer Robert M. Nappe."
On April 9, 2008, the Defendants were both duly served with the instant lawsuit. That same day, Nappe was ordered to turn in his gun and badge and told to return home.
On April 28, Nappe's Labor Union, AFSCME Local 1622, filed a grievance with the State Labor Relations Board alleging that on April 7, 2008, he had been "reinstated in an agreement with the Town of East Haven" and then was terminated on April 9 in violation of the Collective Bargaining Agreement.
The parties have also stipulated that in November of 2007, Nappe had filed a lawsuit in connection with an incident that occurred on August 19, 2006, during which, as a pedestrian, he was allegedly struck by a motor vehicle operated by one Christopher DeRenzi. In his complaint, Nappe had claimed that he had sustained permanently disabling injuries.
Following service of the injunction on the Mayor and the Town, the Mayor retained Attorney James N. Tallberg to represent her and the Town's interests in the present litigation. Tallberg promptly filed a motion to dismiss the action. At the first appearance of this matter on the court's Special Proceedings Calendar on April 28, the court and the parties agreed on an expedited briefing schedule. The court then heard oral argument on May 5, 2008, at 2:00 P.M.
Before addressing the merits of the motion to dismiss, the court needs to emphasize which of the protagonists are the actual parties in interest in the present action. Although, during the trial of the Nappe matter and on appeal, the Board had argued that it was not Nappe's employer and that it was therefore not the party at whom the writ of mandamus should have been directed, Judge Robinson disagreed and issued the writ, directing the Board to reinstate Nappe. It is somewhat ironic, of course, that the Board now argues that it is indeed the body, and, indeed, the sole body, vested with authority to reinstate Nappe, or at least to resolve the appeal one way or the other so that the question of Nappe's reinstatement might be finally put to rest, while the Town and Mayor, whose interests are now allied with those of Nappe, find themselves arguing the position that the Board took during the trial of the underlying action, namely that it is they and not the Board who have the authority to rehire Nappe. Such reversals, of course, are not unknown in the practice of law, and while interesting, ironic and even ofttimes amusing, they are not persuasive as evidence as to any of the issues which this court is being called upon to decide.
The defendants contend, however, that the Board's argument that it was not the proper defendant in Nappe v. Town of East Haven et al., is a judicial admission acknowledging that it is the Town and Mayor that have the authority to reinstate Nappe. To constitute a judicial admission, however, the party's statement must have been made in the same proceeding as that in which its introduction as a judicial admission is sought. Judicial admissions, in other words, are conclusive only in the context of the proceedings in which they are originally made. "In subsequent proceedings, such prior judicial admissions are merely evidential admissions, to be used as evidence to prove a matter in dispute in the subsequent trial." Tait, Handbook of Connecticut Evidence, § 8.16.3 (3rd Ed. 2001); See also Ferry v. Simpson Waterproof Mfg. Co., 40 Conn. 313, 317 (1873), Continental Ins. Co. v. Simkins Industries, No. X01-CV-01-0168422 (Waterbury J.D., December 20, 2001), (31 Conn. L. Rptr 249). As "evidence," this change of posture as to a point of law is not sufficient to establish that the defendants are correct in their claim that it is they who have the authority to withdraw the Board's Appeal.
Furthermore, the court recognizes, and, despite a feeble effort to raise the issue in their brief, the defendants also appear to recognize, that although the matter on appeal to the Supreme Court has retained its original case caption, Robert Nappe v. Town of East Haven, et al., the Town and Mayor are no longer parties to that case, the claims against them having been withdrawn by Nappe in January of 2006. Thus, no mileage is to be gained by the defendants by arguing that one or both of them may still be nominal defendants in the Appeal. They quite clearly are not parties to the Appeal.
We thus begin with the recognition that the Appellant in the Nappe Appeal is the Board of Police Commissioners, notwithstanding its claim at the original trial that it was not the proper party against whom to direct a petition for a writ of mandamus. Whether, as a matter of law, they are or are not the proper party is a question that the Supreme Court will at some point be called upon to decide.
It is important to re-emphasize that the defendants' motion to dismiss, and hence this court's decision, is not about the merits of the Board's initial determination not to reinstate Nappe after his return from Iraq, nor is it about the merits of Judge Robinson's memorandum of decision granting Nappe's Petition for a Writ of Mandamus. The heart of the present issue is solely whether this court has jurisdiction and authority to restrain the Town and the Mayor from imposing their will on the Board with respect to the prosecution of that Appeal and from forcing the Board to return Nappe to active duty as a police officer before the issue of authority to prosecute the appeal is resolved. The motion to dismiss is premised on a two-pronged claim of mootness, as well as a more general argument, more properly directed at the merits of the claim for injunctive relief, that the plaintiff can not establish, as a matter of law, the prerequisites for entitlement to injunctive relief, namely irreparable and imminent injury; the lack of an adequate remedy at law; a likelihood of success on the merits; and that a balancing of the equities favors granting the injunction.
Mootness
The Town and Mayor's argument is in large part based on their contention that the effort to enjoin them from choosing an attorney to appear on behalf of the Board in order to withdraw the appeal has been rendered moot by the fact that they have already done exactly that. After one false start, in which he purported to file an appearance on behalf of the Town and Mayor, Attorney Cirillo has filed an appearance in lieu of that of Attorney Sgrignari on behalf of the Board and has also filed what purports to be a withdrawal of the appeal. These actions, however, do not render the present proceeding moot. As authorized by the Board, Sgrignari filed a timely objection to the effort to oust him as the Board's attorney, and the objection has not, as of this writing, been ruled upon by the Supreme Court, nor has the withdrawal been processed. The Appeal therefore remains pending on the Supreme Court's docket. The defendants' argument that this action has been rendered moot by the withdrawal of the appeal is not supported by the facts and is therefore plainly without merit. The controversy between the parties is very much alive, justiciable and susceptible of resolution, ultimately by the Supreme Court of the State of Connecticut.
The second prong of the defendants' mootness argument is premised on the notion that by the time the ex parte injunction was served on the defendants, Nappe had already been given his gun and his badge and, thus, had already been reinstated. Because, they contend, the purpose of an injunction is to freeze the status quo until a hearing on the merits can be held, this injunction came too late to accomplish its intended purpose. See Clinton v. Middlesex Mutual Assurance Co., 37 Conn.App. 269, 270 (1995). To the extent that an injunction can be likened to closing the barn door, they suggest, this horse had already gone.
But an injunction is not so easily rendered moot merely by rushing to accomplish that which one knows is sought to be restrained. For one thing, there is nothing in the Stipulation of Facts prepared by the parties that suggests that reinstatement was actually accomplished when Nappe "reported to work and was given a gun and a badge." Gallo, to be sure, wrote to the Mayor on April 7 stating that he had reinstated Nappe, but he had called for evidence of fitness for duty before he would consider the process consummated, and the purported letters of fitness from the physicians did not arrive until after the injunction had already been issued. The stipulation of facts does not recite that Nappe was ever administered an oath of office, and Gallo made it clear in his correspondence with the Mayor that he wanted a written decision from either the Board or the Court to be sent to the Police Officer Standards and Training Council as required by it. Although the Mayor sent the Council a letter purporting to enclose "documents with the decision from the court to reinstate Officer Robert M. Nappe," it is clear that the only such document that could have existed was Judge Robinson's original decision. The finality, and hence validity, of that decision was premised on the Appeal having been withdrawn, which, quite clearly, it had not been, despite the Mayor's efforts to have done so. Hence, the conditions set forth by the Chief before he would have considered Nappe reinstated were not met.
The Board appears, in its reply brief, to continue to challenge Nappe's fitness for duty, based on its contention that the brief and conclusory statements of fitness provided by the two physicians are insufficient for this purpose. In light of the other conclusions reached in this memorandum of decision, the court finds it unnecessary to address this issue.
More significantly, however, it is not the formal act of reinstatement, however consummated, that the Board, wisely or unwisely, has sought to prevent throughout the tortuous history of its controversy with Nappe, but rather his serving as a member of the police force at all, formal reinstatement serving only as his ticket of admission. It is clear that, absent injunctive relief, it is the intention of the Town, the Mayor and Nappe that Nappe not merely be issued a gun and a badge and, perhaps, an oath of office, but that he actually be a police officer, with all the rights and obligations that such a position entails. Given that intention, this action is far from moot. The fact that Nappe returned to work for a day before the Town and Mayor were actually served with the present injunction action can not, in and of itself, render moot the question of whether it is the Board or the Mayor that has the ultimate authority to withdraw the Board's appeal and thereby pave the way for Nappe's return to the police department.
Justiciability requires (1) that there be an actual controversy between or among the parties to the dispute, (2) that the interest of the parties be adverse, (3) that the matter in controversy be capable of being adjudicated by the courts, and, (4) that the determination of the controversy can result in practical relief. State v. Eastman, 92 Conn.App. 261, 264 (2005). The pending controversy satisfies all prongs of this test, and the defendants have not established that the court lacks subject matter jurisdiction on the basis of mootness.
The Right to Injunctive Relief
It is well recognized in Connecticut that in order to grant injunctive relief, the court must first find that failure to grant an injunction will result in imminent and irreparable harm; that the person seeking the injunction lacks an adequate remedy at law; that the plaintiff demonstrate a likelihood of success on the merits; and that the court also be satisfied that a balancing of the equities favors granting the injunction. Waterbury Teachers Ass'n. v. Freedom of Information Commission, 230 Conn. 441, 446 (1994).
In granting ex parte relief, this court was concerned, first and foremost, that absent its intervention, the Board's ability to assert its claimed right to prosecute its Appeal might be irrevocably lost by the processing of a withdrawal. Now that the parties' Stipulation of Facts has made clear the fact that the withdrawal has not been processed and that a procedure has been established whereby the issue of whether the Mayor may substitute an attorney of her choosing for the attorney chosen by the Board may be resolved, the court is now satisfied this particular issue does not present a threat of imminent and irreparable harm. The Supreme Court will address and decide the issue in due course.
The defendants' continuing threat to return Nappe to active duty as a police officer prior to such a decision, however, is another matter. The court understands, of course, that Nappe, the defendants, and perhaps many many others, view Nappe's return to work not as a harm but rather as a benefit, and this court is not taking sides on that question. Forcing the issue on the Board and Police Department without waiting for an orderly process at the Supreme Court level to be carried out, however, does create a threat of imminent and irreparable harm, one that has nothing to do with Nappe's merits as a police officer. Judge Robinson's decision ordering the Board to reinstate Nappe has been stayed pending appeal by operation of Sec. 61-11(a) of our Rules of Practice. It would be an irreparable harm to the orderly administration of justice to permit that stay to be subverted in a manner not contemplated by those Rules. Unless the defendants renounce their intention to try to return Nappe to work without allowing the appropriate procedures for either prosecuting or withdrawing the appeal to be followed, they create the threat of an imminent and irreparable harm that ought to be restrained by this court.
The defendants next claim that the Board is not entitled to injunctive relief because it has adequate remedies at law. This contention is grounded in the argument that the proper remedy for an objection to the seating of a public officer is an action in quo warranto pursuant to General Statutes § 52-491. A quo warranto action unseats an illegal public office holder and declares the position vacant, Beccia v. Waterbury, 185 Conn. 445, 456-57 (1981), and our Supreme Court has long held that police officers qualify as public officers for purposes of this statute. Bartlett v. Rockville, 150 Conn. 428, 430 190 A.2d 690 (1963).
General Statutes § 52-491 provides: "When any person or corporation usurps the exercise of any office, franchise or jurisdiction, the superior court may proceed, on a complaint in the nature of a quo warranto, to punish such person or corporation for such usurpation, according to the course of the common law and may proceed therein and render judgment according to the course of the common law."
Leaving aside the question of whether the requirement of the lack of a remedy at law really suggests that the plaintiffs should have pursued an extraordinary writ such as quo warranto instead of an injunction to accomplish its goal of preventing its Appeal to be rendered moot (and the defendants have not provided the court with any precedent in which injunctions were dismissed in favor of the pursuit of an extraordinary writ), the facts of this case would not permit an action in quo warranto. As previously noted, the defendants have not established that Nappe was actually made a "public officer" in the days that preceded the injunction, only that preliminary steps directed toward that result had been undertaken. There is no requirement that a party must forego injunctive relief while waiting for a potential quo warranto action to ripen.
There is, however, an aspect of the "adequate remedy at law" argument, albeit not one actually articulated by the defendants, that has merit, namely that it is now clear that the Board will have ample opportunity to argue its claim that the Mayor lacks the right to peremptorily replace its counsel on appeal with an attorney of her choosing so as to allow her to have the Board's appeal withdrawn. As the plaintiff now has an adequate remedy of law in the objection it filed pursuant to Rule 62-9 of the Rules of Appellate Practice, the ex parte injunction will be modified so as to permit Attorney Cirillo to argue against the Board's objection to his filing of the "in lieu of" appearance and in favor of his right to withdraw the appeal. All of the issues raised regarding the Mayor's claimed authority to settle cases, including this one, and the Board's claimed authority over the appointment of police officers, including Nappe, will get a full hearing in the Supreme Court and therefore need not and should not be addressed here. If the Board's objection is sustained, one presumes that the Appeal will continue to be prosecuted; if it is overruled, one presumes that the Appeal will be withdrawn. Indeed, it is not only no longer necessary to enjoin the defendants from pursuing their efforts to withdraw the appeal, but it is also inappropriate, as the defendants should be permitted to avail themselves of whatever rights the Supreme Court wishes to extend to them to brief, argue, or otherwise make the case that they have the authority to replace the Board's counsel and withdraw the Board's appeal. As to the defendants' continued effort to put Nappe back to work as a police officer without waiting for a ruling from the Supreme Court, however, the plaintiff has no adequate remedy at law. The order restraining the defendants from returning Nappe to work must therefore remain in effect unless the defendants can prevail on any of their other contentions as to why injunctive relief should be denied.
The defendant's remaining arguments, however, are rather easily disposed of. The defendants have not shown that the plaintiff Board can not prevail on the merits of its claim that only the Board has authority to decide whether to continue with its appeal of Judge Robinson's decision. Moreover, as that issue has now been squarely placed before the Supreme Court pursuant to a Rule of Appellate Procedure, it would be presumptuous of this court to render a decision on the merits of that claim, other than to recognize that it is certainly a colorable claim in light of the arguments made by both sides. As to the argument that the Board loses any test in which the equities are sought to be balanced, the question becomes, precisely which equities are the ones that are to be balanced? The defendants argue that they will prevail in their contention that permitting local policemen, who have answered the call of duty to aid their government's efforts in Iraq, to return to their police duties pursuant to a public policy articulated by the Legislative and Executive branches of state government, is a more worthy goal than protecting a Board of Police Commissioners' claim to having hiring and firing authority over department members.
Those, however, are not the equities to be balanced in this injunction action. On one hand, the Board claims that it, as the only appellant in the Nappe case, has the right to determine whether or not to pursue that appeal. The defendants, who claim the authority to settle litigation against the Town, contend that the Board cannot fetter that authority by denying them the power to withdraw the Board's appeal so that they can proceed to a resolution of a case that affects the Town's interests. While that important issue awaits resolution by the Supreme Court, the defendants seek to persist in their efforts to render it moot by consummating Nappe's reinstatement before the Supreme Court can act. On that issue, the equities are solidly against the defendants and in favor of following orderly legal process. That the Board is the only defendant/appellant in the Nappe Appeal is beyond cavil, and the equities favor its right to, at a minimum, have its hearing at the Supreme Court to determine who has the authority to decide who should represent it and whether or not to withdraw its appeal.
In summary, the plaintiff has an adequate remedy at law by which to challenge the defendants' effort to oust its chosen counsel and withdraw its appeal, and the plaintiff does not face imminent and irreparable harm in that regard. With respect to the remainder of the defendants' arguments, the court finds that they are without merit. Given the defendants' persistence in attempting to reinstate Nappe without waiting for the Supreme Court to act, this action is not moot, and this court has subject matter jurisdiction. Although the motion to dismiss is denied, however, the court modifies the language of the original temporary injunction so as to permit the defendants to pursue at the Supreme Court their argument that they have the right to replace the Board's attorney with an attorney of their own choosing and, if they are found to have such a right, their claim that they also have the right to withdraw the Board's Appeal.
The remaining elements of the injunction shall remain in effect, in particular that portion which enjoins the Defendants from taking any action to hire or reinstate Nappe as an East Haven Police Officer without the advance consent and approval of the Plaintiff, pending the Supreme Court's rulings on the issues previously discussed.