Opinion
No. CV01 0809162 S
October 22, 2003
MEMORANDUM OF DECISION
In May 2001, one Albert Bissonnette applied to the State Elevator Work Examining Board ("Board") to take the examination for an R-2 license, which allows one to work on, but not be the contractor for, virtually any elevator in the state. The board approved the application to take the examination. The plaintiff International Union of Elevator Constructors, Local 91 ("Union"), claiming that the approval of the application was grossly improper, filed the present action on several grounds. Decisions by Judge Peck and myself narrowed the complaint to one count which seeks injunctive relief prohibiting Bissonnette from taking the examination and an order of mandamus compelling the board to act lawfully and in accord with its prior pronouncements. After a regrettably protracted period of discovery, not without some controversy, and in the face of a looming trial date, I turn to the motion for summary judgment filed by the board. Because of the very narrow range of subject matter which is properly addressed by the courts in the administrative context, especially while the licensing process is not complete, I find that judgment ought to enter in favor of the board.
The factual scenario is at one level quite straightforward. Albert Bissonnette had some experience working on elevators — though claimed by the union to be the wrong kind of experience — and sought an R-2 license from the board. The board's activities are prescribed by statute and regulation. The membership and qualifications of the board, which is within the Department of Consumer Protection, are established by § 20-331(e) of the General Statutes. The commissioner, with some exceptions, "shall adopt regulations . . . to establish the amount and type of experience and training required to qualify an applicant for an examination for any license and . . . shall determine the specific area of a trade for which limited licenses shall be issued and the areas for which not license shall be required." Section 20-332(b) of the General Statutes. Any applicant seeking a license from any of the licensing boards established by the statutory scheme must be at least eighteen years old and "shall furnish such evidence of competency as the appropriate board, with the consent of the Commissioner of Consumer Protection, shall require." Section 20-333. The applicant must satisfy the board that he or she "has the requisite skill to perform the work in the trade for which such applicant is applying for a license and can comply with all other requirements of this chapter and the regulations adopted under this chapter." Id. Section 20-333 proceeds to describe the examination and certification process.
Section 20-334a generally describes the various licenses for a variety of crafts. Subsection (1)(A) describes contractors' licenses, not generally applicable here. Subsection (2)(A) provides for journeyman's licenses: unlimited licenses may be issued to those who have completed apprenticeship programs with at least four years' experience and who have successfully completed the examination procedure. Subsection (3)(A) is specifically devoted to elevator licensing: an "elevator craftsman's license" may be issued to one who has completed an apprenticeship program, has two years experience in elevator work and has demonstrated competency, while an "elevator helper's license" may be issued to one for working on elevator maintenance under the supervision of a craftsman.
The commissioner promulgated regulations as authorized by the above statutory scheme. Pursuant to § 20-332-3(b), the applicant for unlimited journeyman license, which is the "R-2" license in issue in this case, is to have completed a two-year, four-thousand hour elevator-apprenticeship program or have "equivalent experience." There apparently is no formal apprenticeship program in the elevator industry. A major item of contention, then, is what constitutes "equivalent experience." Minutes of the board for meetings in 1999 suggest that the board selected eight content areas, analogous to a number of units of the program National Elevator Industry Educational Program, which would constitute appropriate training. There is also a limited license, which allows workers to maintain assistance devices, such as home units, the qualifications for which are considerably less rigorous.
The board, of course, has no authority to adopt regulations. It at least in theory was supposed to advise the commissioner as to suitable regulations in the area of elevator craftsmen.
The instant controversy was apparently triggered by a union complaint that Albert Bissonnette was in 2001 doing work which required an R-2 license when he didn't have one. Sponsored by his employer, one Thomas O'Reilly, who also was a board member, Bissonnette then applied to take the R-2 examination. O'Reilly spoke in his behalf but abstained from voting. The board approved the application to take the examination by a 4-1 vote. Before the examination could be administered, the union filed the instant action. The gravamen of the action is a claim that Bissonnette has not satisfied minimum requirements to take the examination and that the power of the court should be exercised accordingly.
The union also claims in a belated amended complaint which is sought to be filed that, inter alia, equal protection concerns are implicated and that the board has not established fair notice of what is required to take the examination.
Shortly after the union brought this action the board sought to dismiss the action for lack of subject matter jurisdiction, in that the union lacked standing. The court (Peck, J.) denied the motion as to the mandamus and injunction count and granted the motion as to the damages count in February 2002. I later denied a motion to strike the remaining count, and the instant amended motion for summary judgment, dated July 30, 2003, remains.
The standards governing motions for summary judgment are well established. Summary judgment should be granted "if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Section 17-49 of the Practice Book. A material fact is one which will make a difference in the result. Barrett v. Southern Connecticut Gas Company, 172 Conn. 362, 378 (1977). The movant has the burden of showing the absence of a genuine issue, and the evidence is to be viewed in the light most favorable to the nonmoving party. Hammer v. Lumberman's Mutual Casualty Company, 214 Conn. 573, 578 (1990). If the moving party successfully sustains its burden, the opposing party has the burden of presenting evidence to show that there is a genuine issue. It is not enough to state in conclusory fashion that an issue exists. Daily v. New Britain Machine Company, 200 Conn. 562, 568 (1986). The motion should be granted if a verdict would be directed on the same evidence. Batick v. Seymour, 186 Conn. 632, 647 (1984).
Among the considerations present in this case is that the action has disrupted administrative proceedings, and that the Administrative Procedures Act governs appeals from the licensing process. See § 20-336 of the General Statutes. As a general proposition, then, sound policy does not favor intervention in media res. See, e.g., Stepney v. Fairfield, 263 Conn. 558, 568-70 (2003); River Bend Associates, Inc. v. Simsbury, 262 Conn. 84 (2002); Waterbury v. Washington, 260 Conn. 506 (2002); Kish v. Cohn, 59 Conn. App. 236 (2000).
The black letter law regarding the issuance of mandamus in particular and injunctive relief in the administrative context in particular is well defined:
A "writ of mandamus is an extraordinary remedy to be applied only under exceptional conditions, and is not to be extended beyond its well-established limits." Raslavsky v. Moore, 167 Conn. 363, 367, 355 A.2d 272, citing Lahiff v. St. Joseph's Total Abstinence Society, 76 Conn. 648, 651, 57 A. 692, and Chatfield Co. v. Reeves, 87 Conn. 63, 64, 86 A. 750; Milford Education Ass'n v. Board of Education, 167 Conn. 513, 518, 356 A.2d 109. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60. "The writ of mandamus is designed to enforce a plain positive duty, upon the relation of one who has a clear legal right to have it performed, and where there is no other adequate legal remedy." Milford Education Ass'n v. Board of Education, supra, 518, citing State v. New Haven Northampton Co., 45 Conn. 331, 343. Consequently, a writ of mandamus will not lie to direct performance of an act requiring the exercise of a public officer's judgment or discretion, Waterbury Teachers Ass'n v. Furlong, 162 Conn. 390, 414, 294 A.2d 546; Ballas v. Woodin, 155 Conn. 283, 284, 231 A.2d 273; Boyko v. Weiss, 147 Conn. 183, 186, 158 A.2d 253; State ex rel. Scala v. Airport Commission, 154 Conn. 168, 176, 224 A.2d 236; State ex rel. Gold v. Usher, 138 Conn. 323, 326, 84 A.2d 276, nor will it lie to review a discretionary action of a public officer or board and compel a different course of action, Simmons v. Budds, 165 Conn. 507, 516, 338 A.2d 479; Hannifan v. Sachs, 150 Conn. 162, 167, 187 A.2d 253; State ex rel. Heimov v. Thomson, 131 Conn. 8, 12, 37 A.2d 689. Thus, use of mandamus "is justified only when necessary to supplement the deficiencies of ordinary legal processes" and when "the aggrieved party has no adequate remedy either at law or in equity." Milford Education Ass'n v. Board of Education, supra, 519, citing State ex rel. Howard v. Hartford Street Ry. Co., 76 Conn. 174, 184, 56 A. 506, and Bassett v. Atwater, 65 Conn. 355, 32 A. 937.
Light v. Board of Education, 170 Conn. 35, 37-38 (1975).
"Mandamus is an extraordinary remedy, available in limited circumstances for limited purposes . . . It is fundamental that the issuance of the writ rests in the discretion of the court, not an arbitrary discretion exercised as a result of caprice but a sound discretion exercised in accordance with recognized principles of law . . . That discretion will be exercised in favor of issuing the writ only where the plaintiff has a clear legal right to have done that which he seeks . . . The writ 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, supra, 54 Conn. App. 653.
Miles v. Foley, 253 Conn. 381, 391 (2000).
"It is well established that mandamus will issue only if the plaintiff can establish: (1) that the plaintiff has a clear legal right to the performance of a duty by the defendant; (2) that the defendant has no discretion with respect to the performance of that duty; and (3) that the plaintiff has no adequate remedy at law." Vartuli v. Sotire, supra, 192 Conn. 365. The third requirement is satisfied by our previous conclusion that the town and the board of education were not entitled to appeal under the UAPA. None of the parties has suggested, nor can we conceive of, any other adequate legal remedy available to the town and board of education in this case.
Town of Stratford v. State Bd. Of Med. Arb., 239 Conn. 32, 44 (1996).
An analysis of the case law confirms the conclusion that injunctive relief, mandamus or otherwise, is not available to the plaintiff at this time. As noted at some length above, relief is available only if the applicant is clearly entitled to relief, the sought action is ministerial and there is no adequate remedy at law. It is apparent that the regulatory mandate of "equivalent experience" imposes a discretionary duty, as argued at length by the board. Perhaps more compellingly, the case law clearly establishes the policy that administrative action will not be interfered with, at least where some action has been taken and there is the remedy of appeal.
The union argues in its brief that the board has waived any assertion that summary judgment ought to be granted as to injunctive relief by not presenting a detailed argument to that effect in its brief. I disagree, because the same considerations, at least as to the availability of an adequate remedy at law, bear upon the claim for injunctive relief in general.
In Miles v. Foley, supra, for example, the court went to some length to hold that courts ought not interfere with administrative action, even if it is erroneous, where there is a clear avenue of appeal. Id., at 253 Conn. 388-91. Similarly, in Stratford v. State Board, 239 Conn. 32, 40 (1996), the court held that if an appeal were available, there could be no interfering injunctive action, because of the resulting adequate remedy at law. By contrast, in Grasso v. Zoning Board of Appeals, CT Page 11827 69 Conn. App. 230 (2002), the injunctive remedy was granted but the remedy was to hold a hearing, not to reach any particular result. A consistent result was reached in Kosinski v. Lawlor, 177 Conn. 420 (1979): the board in that instance had already decided that all of the requirements for a permit had been met, so the issuing of a permit was then mandatory.
Both sides claim that the case of Light v. Board of Education, 170 Conn. 35 (1975), is favorable. In that case a nontenured teacher sought and was granted a hearing by the board of education, but claimed that her statutory and constitutional rights had been violated in the denial of her claim. The court held that injunctive relief would not lie, because action was discretionary. The court noted, however, that the plaintiff may have been able to compel the holding of a hearing, if one had been refused, but, again, could not compel the result of the hearing.
I have read all of the material submitted by both sides in this matter, and although I express no opinion as to whether the board acted properly, it is clear that the board acted and that further proceedings by the board will take place. If a license is granted, the union can presumably appeal. The board's actions were discretionary, at least to a large extent. In this posture, judicial intervention is inappropriate and summary judgment is granted in favor of the board.
Because of the passage of time, it is possible that Mr. Bissonnette has gained more relevant experience or otherwise has strengthened his application.
The union makes much of the board's minutes. It is unclear, however, what force and effect the minutes have. It is clear that they do not have the force of formal regulations.
Beach, J.