Opinion
No. CV 98 0581655 S
December 13, 2004
MEMORANDUM OF DECISION
This is a motion for contempt (#191) filed by the plaintiff Commissioner of Environmental Protection ("commissioner") against the defendant Light Sources, Inc. The commissioner claims that Light Sources did not file a scope of study for the investigation of contamination by mercury within the time prescribed by a prior court order, and that its noncompliance was wilful. The commissioner thus seeks sanctions for the claimed civil contempt in the amount of $5,000 per day for a time period of approximately six months. The motion was filed on September 14, 2004. Several conferences were held, and a hearing was held on November 16, 2004. Several post-hearing briefs were submitted by the parties.
There are other corporate defendants, apparently within the same business ownership. The other defendants either have the same interest as the first named defendant or no longer exist. For present purposes, the parties have urged no distinction among the entities, nor do I.
The factual context, though complex, is largely undisputed. The defendant Light Sources is a manufacturer of special purpose fluorescent lamps. It experienced an accidental mercury spill in March 1998, and reported the event itself to the commissioner, who initiated this action for remediation in 1998. The court file is quite voluminous; as a result, I will mention only the highlights which pertain to the instant motion for contempt.
The merits were heard before the Hon. Norris O'Neill, judge trial referee, over a period of ten days in the summer of 2002. He issued a memorandum of decision on April 1, 2003; the ruling included an order of permanent injunction. Motions for reargument were made and a memorandum of decision as to the motion for reargument was issued on May 27, 2003. Judge O'Neill clarified the order of permanent injunction by decision filed on December 4, 2003. The defendants appealed. My understanding is that the appeal on the merits is ready for argument, but argument has not yet been specifically scheduled by the Appellate Court.
Parts of the orders of permanent injunction have required the defendants to submit to the commissioner for his review and approval a "scope of study" for the investigation of contamination by mercury. The April 2003, order required the defendants to identify concentrations of mercury at a level of 1.0 parts per million or greater, and to remediate those areas to a level of 0.2 parts per million or less. The study was to be submitted within sixty days of the order. The defendants submitted such a study on June 3, 2003, which has been considered timely compliance by all parties. The hitch is that the commissioner sought by reargument to have the terms of the permanent injunction changed, such that areas contaminated to the extent of 0.2 parts per million or more be identified and remediated to the level of 0.2 parts per million or less. By letter dated July 9, 2003, the commissioner notified the defendants that it was holding review and approval of its scope of study letter in abeyance until the court resolved the issue(s) presented on reargument.
See ¶ I.B. of Judge O'Neill's April 1, 2003, order and subsequent revisions.
Various motions for clarification and reconsideration were considered by the court, and ultimately Judge O'Neill issued a final, for our purposes, memorandum of decision on December 4, 2003, which required, fundamentally, the more stringent identification and remediation levels urged by the commissioner. As noted above, this order has been appealed by the defendants to the Appellate Court and argument is pending.
The defendants filed in the trial court an application for a stay of execution pending the appeal on February 17, 2004. A week later, on February 24, 2004, the commissioner wrote a letter to the defendants. He indicated that in light of the December 4, 2003, decision of Judge O'Neill, the scope of study previously submitted was disapproved. The commissioner required a new scope of study to be filed no later than March 29, 2004. On March 1, 2004, counsel for the defendants wrote a letter to the plaintiff suggesting that because a stay had been requested, though not yet ruled on, the defendants did not intend necessarily to abide by the deadline mandated by the commissioner. On March 11, 2004, counsel for the commissioner wrote back to counsel for the defendant and stated that it was her position that no stay was in effect unless or until the court were to order a stay.
The roughly thirty-day period for renewed compliance was apparently based on language in the permanent injunction which allowed for modifications or corrections to be made within thirty days of notice by the commissioner.
On March 15, 2004, the court, Langenbach, J., denied the motion for the stay without further comment. The defendants moved to reargue the stay; Judge Langenbach denied the motion to reargue on May 10, 2004. The defendants filed a motion to review the denial on May 19, 2004. On June 30, 2004, the Appellate Court ordered a stay pending its determination of the motion, and it ordered the trial court to articulate the basis for its denial of the stay. Judge Langenbach, in a written memorandum filed on July 20, 2004, stated that the stay was denied because of the prospect of great and irreparable injury and not because the application for the stay was filed only for purposes of delay and not in good faith.
Counsel for the commissioner states that she did not receive a copy of the motion for review.
Pursuant to § 52-477 of the General Statutes, the trial court is to grant a motion to stay injunctive relief pending appeal, unless it finds that "great and irreparable injury will be done by such stay or that such application was made only for purpose of delay and not in good faith."
Meanwhile, on May 11, the commissioner advised the defendants that the revised scope of study should be filed immediately. On May 19, counsel for the defendants informed counsel for the plaintiff that the defendants were seeking review in the Appellate Court and that she believed the order of permanent injunction was stayed pending the Appellate Court's ruling. The scope of study was not required to be filed immediately, then, under that interpretation. On May 26, plaintiff's counsel disagreed with the defendant's position regarding the stay and stated that failure to submit the study was a violation of the court's order.
On the judicial front, it will be recalled that the Appellate Court temporarily stayed injunctive relief on June 30, 2004. The plaintiff filed motions on July 2 requesting, inter alia, reconsideration of its stay order. On July 29, 2004, the Appellate Court vacated its prior order as to the stay with respect to, among others, the scope of study requirement. On September 14, 2004, that court denied the defendants' request for a stay. At the same time, it will be recalled, the instant motion for a finding of contempt was filed in this court.
On October 8, 2004, the defendants filed the revised scope of study. I don't yet know whether the document has met with the approval of the commissioner.
At the hearing of the contempt motion in this court, I heard testimony from Douglas Zimmerman, a supervising environmental analyst with the Department of Environmental Protection, and from Christian Sauska, the president and founder of the defendants. Mr. Zimmerman was familiar with the compliance and remediation efforts and authenticated several of the letters referred to above. He indicated that the first compliance order had been unilaterally "held in abeyance" by the department, and that decision was made because the department felt that the court order may well be modified, as indeed it was. He said that as of the time of the hearing, no notification had been made regarding the acceptance or rejection of the revised study. He indicated that many technical people review the studies submitted, and the process does take some time.
Sauska indicated that he consistently instructed his employees to do everything required to comply with environmental regulations. He instructed GZA, the environmental consultants hired to deal with the controversy in question, in the same manner. He was generally aware of the legal status of the controversy as it happened. He knew of Judge O'Neill's orders and of his counsel's requests for stays. He did not intend to violate any of the judge's orders. He instructed GZA and his attorneys to comply, but he relied on their expertise and advice; he told Attorney Keefe, representing the companies at the time, to do what he thought was appropriate with regard to the various positions of stays and claims by plaintiff's counsel of wilful disobedience to the court orders. If Keefe and GZA believed there were justifications for their actions, then Sauska would not disagree with those people's opinions. Sauska trusted Keefe's judgment as to when the scope of study was due. He was aware of Judge O'Neill's orders, and he was aware of the $5,000 per day civil sanction. He knew he had to submit a study, but there was a question as to when it was due. He relied on Keefe's interpretation rather than the interpretation of the Assistant Attorneys General.
On these facts, the commissioner urges that the defendants be held in contempt and fined at the rate of $5,000 per day for the period of time between March 29, 2004, and October 8, 2004, less the time from June 30 to July 29, when the Appellate Court's stay was in effect. The defendants urge that they not be held in contempt at all, because there was no wilful disobedience to a court order.
Wilful disobedience to an order of the court constitutes civil contempt. Cologne v. Westfarms Associates, 197 Conn. 141, 150 (1985); Sablosky v. Sablosky, 258 Conn. 713, 717 (2001). For the purpose of deciding whether disobedience is wilful, it doesn't matter whether a challenged court order is ultimately upheld or reversed. Cologne, supra, 148; Sablosky, supra, 719. Ordinarily the court order forming the premise for the contempt must not be ambiguous in any material way if the party is to be found in contempt. Sablosky, supra, 717; see Carothers v. Capozziello, 215 Conn. 82, 113-14 (1990).
The commissioner's position depends on several premises. It will be recalled that it is the order of Judge O'Neill of December 4, 2003, that forms the basis of the contempt motion. First, then, there must be no effective stay of that order. Second, that order itself must be without ambiguity. Third, any violation must be wilful, and there must be no good faith dispute or legitimate misunderstanding. Sablosky, supra, 718. Finally, a consideration of the surrounding facts and circumstances must result in a conclusion that there is no factual basis sufficient to explain noncompliance. In re Daniel C., 63 Conn.App. 339, 369 (2001).
Preliminarily, the question arose in the hearing as to the applicable burden of proof. The commissioner has suggested that the movant has the burden to show contempt only by a preponderance of the evidence and has cited Cologne, supra, for that proposition. The issue in Cologne was whether traditional evidentiary processes are necessary to support a finding of contempt and the Supreme Court answered in the affirmative. The trial court in Cologne had based findings on unsworn statements of counsel and, apparently, an audience member. The Supreme Court mentioned that in contempt proceedings, a finding of contempt must be supported by "sufficient proof" . . . "as in ordinary cases" because, the court continued, the putative contemnor was subject to substantial fines and loss of liberty. I do not read the language in context to compel the conclusion that the appropriate standard of proof is a preponderance; given the prospect of fines and loss of liberty, it might be more consistent with our general constructs to conclude that at least a clear and convincing standard ought to be employed. For the purpose of this ruling I will, however, use a preponderance standard.
A finding of fraud, for example, requires clear and convincing proof.
The parties have argued at some length over the question of whether stays of execution existed at various junctures in the proceedings. First, it seems clear that §§ 61-11 and 61-12 of the Practice Book do not apply, because a statutory stay provision exists, to wit, § 52-477 of the General Statutes. The defendant had requested stays pursuant to § 52-477 and pursuant to motions for review. Although there was only one period, from June 30 to July 29, when a stay was explicitly in effect, requests were pending for much of the relevant time. The commissioner posits that the injunction was not stayed for time periods during which a request for a stay was pending but not ruled on one way or another. The sixty-day period, or thirty-day period under its interpretation, ran at least by March 29, 2003, under that reasoning.
Both sides rely on Tomasso Brothers, Inc. v. October Twenty-four, Inc., 230 Conn. 641 (1994). There, the trial court enjoined the defendant from operating a quarry on its land. The defendant appealed from the order of injunctive relief, but did not cease its operations during the appeal. Nor did it request a stay of any kind. The trial court held the defendant in contempt. One issue, not directly relevant to the stay issue, was whether the injunction retained validity when the plaintiff modified its plans for development of the property affected by the defendant's conduct.
The Supreme Court discussed the history of stays pending appeal in the context of injunctive relief. Interestingly, the court distinguished between prohibitory and mandatory injunctions: in common law, there was no automatic stay of prohibitory injunctions, but there were automatic stays of mandatory injunctions. Prohibitory injunctions, of course, forbid a person to do certain acts, while mandatory injunctions require a person to do certain acts. The difference was explained in Tomasso Bros. by the policies furthering the maintenance of the status quo and the avoidance of irreparable harm. Id., 650-54. Had the situation in the present case under consideration been governed by the common law, then, there would have been an automatic stay of execution pending appeal, subject, of course, to revision or termination on the proper showing.
Despite the historical discussion, the court went on to hold that a statute, § 52-477, now controls, and there is currently no automatic stay of execution of injunctive relief pending appeal, although the statute creates a presumption in favor of granting a stay in the case of a mandatory injunction. Perhaps significantly, however, the court concluded that absent a request for a stay, the injunction remains in effect. Id., 656-57. It seems to me that the most logical interpretation of Tomasso Brothers may be that a prohibitory injunction is not stayed by request, but that a mandatory injunction, such as is present in this case, is stayed by the request. By granting the stay pending the motion for review, the Appellate Court appeared tacitly to follow the same policy.
Virtually every case in the area states, of course, that the filing of an appeal does not automatically stay injunctive relief. See Carothers v. Capozziello, supra, 113-14; Sablosky, supra, 719; Bauer v. Waste Management of Connecticut, 239 Conn. 515, 529 (1996). But the issue here is the effect of a request for a stay, not of merely filing an appeal. For the narrow purpose of this case, I find only that there is a colorable argument that the circumstances of this case create a stay for the period in which the request for the stay was made and while it was being decided. The same logic applies to the Appellate Court proceedings: although I am not an appropriate font of Appellate Court procedure, the position of the defendants is at least colorable. Second, I find that the order appealed from was sufficiently unambiguous to form the basis of a finding of contempt.
The third consideration which is significant for the purpose of this case is whether a good faith dispute as to the interpretation of the timing situation existed: if it did, then a finding of contempt may be inappropriate. The language of Sablosky is helpful:
". . . A good faith dispute or legitimate misunderstanding of the terms of an alimony or support obligation may prevent a finding that the payor's nonpayment was wilful. This does not mean, however, that such a dispute or misunderstanding will preclude a finding of wilfulness as a predicate to a judgment of contempt. Whether it will preclude such a finding is ultimately within the trial court's discretion. [Also, it] is within the sound discretion of the court to deny a claim for contempt when there is an adequate factual basis to explain the failure to honor the court's order. Marcil v. Marcil, 4 Conn.App. 403, 405, 494 A.2d 620 (1985)." (Internal quotation marks. omitted.) Eldridge v. Eldridge, 244 Conn 523, 529, 710 A.2d 757 (1998).
Sablosky v. Sablosky, 258 Conn. 713, 718 (2001).
Though the issue in Sablosky was whether the court order was ambiguous, the same reasoning applies to whether nuances in the application of the stay provisions provide an objective basis for the party's position. As noted above, I believe there is ample ground for a good faith belief in the position adopted by the defendants. In this sense, the violation — if there is a violation — is not wilful in the contumacious sense.
Finally, a consideration of the surrounding facts and circumstances compels me to exercise discretion not to find the defendants in contempt:
Civil contempt involves the wilful failure to comply with an applicable court order. Marcil v. Marcil, 4 Conn.App. 403, 405, 494 A.2d 620 (1985). Before finding a person in contempt for the wilful violation of a court order, the trial court must consider the circumstances and facts surrounding the violation. Wilson v. Wilson, 38 Conn.App. 263, 275-76, 661 A.2d 621 (1995). "The fact that the order had not been complied with fully, however, does not dictate that a finding of contempt must enter. It is within the sound discretion of the court to deny a claim for contempt when there is an adequate factual basis to explain the failure to honor the court's order." Marcil v. Marcil, supra, 405. On review, every reasonable presumption will be made in favor of the trial court in exercising its discretion. Meehan v. Meehan, 40 Conn.App. 107, 111, 669 A.2d 616, cert. denied, 236 Conn. 915, 673 A.2d 1142 (1996).
In re Daniel C., 63 Conn.App. 339, 369 (2001).
One aspect of the surrounding circumstances is reliance upon counsel. It is of course true that reliance on counsel does not help a putative contemnor if the advice consists of the probability of reversing the subject order, or of assessing the chances of success or the penalties for noncompliance. See, e.g., Bauer, supra, at 529. But, as also noted in Bauer, consultation with counsel may be a factor to consider if the advice consists, for example, of how to comply with the order. In the case at hand, Sauska's overall direction was to comply with the court's order (in contradistinction to the Bauer situation, where the contemnor stated he would never comply with the court's order and continued by positive act to violate the order during the course of the appeal), and he relied on his counsel's interpretation of the undeniably complicated stay situation rather than that of the Assistant Attorney General. I do not find that reliance on counsel is necessarily a defense to a finding of contempt, but I do find that it is a factor to consider in the assessment of whether a court order was wilfully violated.
Another factor which I consider is the overall course of the investigation and the overall compliance efforts. The episode was initiated because of "self-reporting." One can be somewhat cynical about the sincerity of self-reporting, but I believe it is a factor, though a small one, to consider. The defendant did comply in a timely manner with the first order of the court and submitted one scope of study. It was after the project was broadened, on request by the plaintiff and with the necessary passage of time, that the defendant appealed and consistently sought a stay. I think it is significant that the scope of study was filed two months before I write this decision: although compliance is again not a defense if the compliance was not timely, it nonetheless is a factor to consider in the exercise of the court's discretion. Rocque v. Design Land Developers of Milford, Inc., 82 Conn.App. 361 (2004); see also Cologne v. Westfarms Associates, supra, 157 (if the ultimate purpose of the order has been satisfied, there may be no real need to continue contempt proceedings even if a party may have actually been in contempt for some period of time).
In an evaluation of all the circumstances, then, I do not find that the defendants are in wilful violation of court orders or that discretion calls for the finding of contempt. There has been none of the defiance permeating cases such as Bauer and Capozziello. Mr. Zimmerman indicated that studies were in fact received, and the department has taken time itself to carefully assess the facts. Again, correlative carefulness and consequent consumption of time on the part of the plaintiff do not excuse noncompliance, but they are part of the surrounding circumstances. The department put in abeyance its review while it sought reconsideration of the scope of the trial court's injunctive orders. The defendant relied on the competence of its counsel, who endorsed a position as to timing that was at least colorable and who did not counsel noncompliance with the substance of the order of the court. Finally, the injunction in question was not prohibitory, in that it did not, for example, enjoin further mercury spills, and the defendants did not continue to spill mercury during the course of the proceedings. Rather, the clean-up plan was somewhat delayed — for about six months in the context of proceedings which have already lasted six years — by the position taken by the defendants as to the stay and the defendants filed the revised scope of study two months ago. The motion for contempt (#191) is denied.
Beach, J.