Opinion
No. CR06-54952
October 3, 2006
MEMORANDUM OF DECISION ON DEFENDANT'S CLAIM TO A JURY TRIAL AND STATE'S MOTION TO STRIKE
I STATEMENT OF THE CASE
The state alleges that the defendant is the owner of record of a New Haven apartment building, as defined in the municipal housing code of the city of New Haven (the housing code). The building was inspected by a housing enforcement officer with the New Haven Livable City Initiative, which inspection allegedly revealed a number of housing code violations, which the state further alleges the defendant did not abate in a timely manner. The defendant has been charged by way of a prosecutorial summons with eighteen (18) violations of the housing code, pursuant to the General Statutes § 7-148. The defendant was originally presented on these charges in the New Haven Housing Session of Superior Court.
By its terms, one of the potential penalties for a violation of the housing code is a thirty-day jail sentence. The defendant elected in Housing Session to be tried by a jury. The court, Doherty, J., thereafter transferred this matter to the Criminal Session, GA #23, New Haven, for further proceedings. By way of a motion to strike, the state is seeking to remove this case from the jury trial list. This case involves the interaction between the housing code, which is a set of municipally enacted housing ordinances, and the terms of the General Statutes. The parties advance several arguments in support of their respective positions, which will be addressed separately.
II THE PENALTY PROVISION OF THE HOUSING CODE
The current version of the housing code was enacted by municipal ordinance in 1954, and it has been amended numerous times through the years. By the terms of a 1957 ordinance, paragraph 102 of the housing code provides for incarceration as a possible penalty: "Any person who shall violate any provision of this Title may, upon conviction, be punished by a fine of not more than one hundred dollars ($100.00) or by imprisonment for not more than thirty (30) days and each day's failure to comply with any such provision shall constitute a separate violation." (Emphasis added.)The right to a jury trial in a criminal matter is set forth in General Statutes § 54-82b(a), which provides as follows: "The party accused in a criminal action in the Superior Court may demand a trial by jury of issues which are triable of right by a jury. There is no right to trial by jury in criminal actions where the maximum penalty is a fine of one hundred ninety-nine dollars or in any matter involving violations payable through the centralized infractions bureau where the maximum penalty is a fine of five hundred dollars or less."
Citing both paragraph 102 of the housing code and General Statutes § 54-82b(a), the defendant asserts he is entitled to a trial by jury on these charges as a matter of law. The court agrees with the defendant that the term of thirty days incarceration specified in the housing code renders it punitive in nature. Accordingly, whatever the legal status of paragraph 102 at the time of its adoption in 1957 (a point the court takes no position on), if this provision remains valid in 2006, the defendant would indeed have a constitutional right to a jury trial. This right is guaranteed him under the sixth and fourteenth amendments to the United States constitution, and also article first, section eight, as amended by article seventeen of the amendments, and article first, section nineteen, as amended by article four of the amendments of the constitution of Connecticut. Moreover, the court further agrees with the general proposition that a right to a jury trial is not contingent upon the state's election to pursue a period of incarceration in the event of a conviction. But these constitutional provisions are only the beginning, not the end, of the court's inquiry. For the reasons set forth herein, the court finds that the city of New Haven exceeded the scope of its municipal authority in providing for a period of incarceration in paragraph 102 of the housing code.
III INVALIDITY OF ULTRA VIRES ACTS
The state has moved to strike this case from the jury docket. The state asserts that General Statutes § 7-148, titled "Scope of Municipal Powers," expressly limits the authority of a municipality to enact penalty provisions for a violation of any such ordinance. In deciding whether a municipal planning and zoning ordinance represented an ultra vires act, the Supreme Court stated: "If the legislation is [an] ordinance, it must comply with, and serve the purpose of the statute under which the sanction is claimed for it." (Internal quotation marks omitted.) Builders Service Corp. v. Planning Zoning Commission, 208 Conn. 267, 275, 545 A.2d 530 (1988). "Furthermore, it is [well] settled that a municipality, as a creation of the state, has no inherent powers of its own, and has only those powers expressly granted to it by the state or that are necessary for it to discharge its duties and carry out its purposes." Ganim v. Smith Wesson Corp., 258 Conn. 313, 367, 780 A.2d 98 (2001). Moreover, "[t]he charter or statute by which the municipality is created is its organic act. Neither the corporation nor its officers can do any act, make any contract, or incur any liability not authorized thereby, or by the legislative act applicable thereto. All acts beyond the scope of the powers granted are void. Thus, in the exercise of its powers, a municipal corporation is said to be confined to the circumference of those granted and may not travel beyond the scope of its charter or in excess of the granted authority." (Internal quotation marks omitted.) Highgate Condominium Ass'n. v. Watertown Fire District, 210 Conn. 6, 16-17, 553 A.2d 1126 (1989). "[W]here the town charter prescribes a particular procedure by which a specific act is to be done or a power is to be performed, that procedure must be followed for the act to be lawful. Miller v. Eighth Utilities District, 179 Conn. 589, 594, 427 A.2d 425 (1980)." (Internal quotation marks omitted.) Pillar v. Groton, 46 Conn.App. 305, 308, 699 A.2d 168 (1997).
"In order for the challenged [ordinance] to be found `ultra vires,' [the municipality], in enacting the [ordinance], must have acted beyond the powers conferred upon it by law." Builders Service Corp. v. Planning Zoning Commission, supra, 208 Conn. 274. The municipal housing codes are generally enacted by the local government under the authority of § 7-148 delegating these powers to the towns. See Edwards v. Code Enforcement Committee, 13 Conn.App. 1, 7, 534 A.2d 617 (1987). General Statutes § 7-148(c), titled "Powers," provides in relevant part: "Any municipality shall have the power to do any of the following, in addition to all powers granted to municipalities under the constitution and general statutes . . . (7) Regulatory and police powers. (A) Buildings. (i) Make rules relating to the maintenance of safe and sanitary housing; (ii) Regulate the mode of using any buildings when such regulations seem expedient for the purpose of promoting the safety, health, morals and general welfare of the inhabitants of the municipality . . . (H) Public health and safety . . . (xi) Provide for the health of the inhabitants of the municipality and do all things necessary or desirable to secure and promote the public health . . . (xiii) Make and enforce police, sanitary or other similar regulations and protect or promote the peace, safety, good government and welfare of the municipality and its inhabitants . . ."
Black's Law Dictionary defines ultra vires as follows: "Acts beyond the scope of the powers of a corporation, as defined by its charter or laws of state of incorporation. The term has a broad application and includes not only acts prohibited by the charter, but acts which are in excess of powers granted and not prohibited . . . By doctrine of ultra vires a contract made by a corporation beyond the scope of its corporate powers is unlawful." Black's Law Dictionary (5th Ed. 1983). "Courts distinguish between an act utterly beyond the jurisdiction of a municipal corporation (which is ultra vires in the primary sense and void) and the irregular exercise of a basic power under legislative grant in matters that are not in themselves jurisdictional (which is ultra vires only in the secondary sense which does not preclude ratification or the application of the doctrine of estoppel in the interest of equity and essential justice)" 28 Am.Jur.2d, Estoppel and Waiver § 153 (1966).
Pursuant to General Statutes § 7-148 (c)(10)(A), a municipality like the city of New Haven has the authority to "[m]ake all lawful regulations and ordinances in furtherance of any general powers as enumerated in this section, and prescribe penalties for the violation of the same not to exceed one hundred dollars, unless otherwise specifically provided by the general statutes." (Emphasis added.)
New Haven's power to enact its housing code is derived from those subsections of § 7-148(c) that authorize a municipality to promulgate rules relating to the maintenance of safe and sanitary housing, and to promote the safety, health, morals and general welfare of the inhabitants of the municipality. See General Statutes Section § 7-148(c)(7)(A)(i), (ii); (H)(xi) and (xiii). The language of § 7-148(c)(10)(A), which prescribes $100 as the maximum penalty for a violation of an ordinance enacted in furtherance of the municipal powers enumerated in this section, i.e., the housing code, is explicit. Its meaning is clear and unambiguous. Furthermore, no other statute "specifically" provides for a different penalty for such a violation.
The court therefore finds that the period of incarceration authorized in the housing code at paragraph 102 exceeds the scope of the powers granted to the city of New Haven by General Statutes § 7-148(c). Moreover, the New Haven Code of Ordinances, which contains the housing code, provides that "[e]very person who shall violate any provision of this code, now or hereafter in force, shall be guilty of an infraction, and upon conviction shall be punished by a fine of not more than one hundred dollars ($100.00), or the maximum amount authorized by Conn. General Statutes section 7-148(c)(10)(A), except where a different fine or penalty is expressly prescribed." (Emphasis added.) New Haven Code of Ordinances § 1-8. While §§ 49 and 50 of the code of ordinances enumerate categories of violations for which penalties in excess of $100 may be imposed, housing violations are not contained in any of these categories. Therefore, according to both the General Statutes and the code of ordinances, the maximum penalty for a housing code violation is $100.
A municipality cannot enact an ordinance contrary to the public policy of the state as declared in state legislation. Old Colony Gardens, Inc. v. Stamford, 147 Conn. 60, 64, 156 A.2d 515 (1959). "When a statute and an ordinance dealing with the same matter conflict, the statute prevails . . . An ordinance enacted after a statute with which it is in conflict is void . . . It is a fundamental principle that a municipal ordinance is inferior in status and subordinate to the laws of the state . . . [and] a particular provision may be declared void." (Citations omitted.) Sheehan v. Altschule, 148 Conn. 517, 521, 172 A.2d 897 (1961). Because the city of New Haven exceeded the scope of its municipal authority by authorizing a period of incarceration for a violation of its housing code, the court finds such provision to be ultra vires, and therefore invalid.
"The next question is whether the invalidity of . . . portions of the ordinance renders the whole ordinance invalid. This is a question of separability." Burton v. Hartford, 144 Conn. 80, 88-89, 127 A.2d 251 (1956). "Although the ordinance contains a separability provision, such provision does not conclusively establish severability but rather creates a rebuttable presumption in favor of it . . . In considering the question of severability of two parts of a challenged legislative enactment, the test is whether they are so mutually connected and dependent as to indicate a legislative intent that they should stand or fall together." (Citation omitted; internal quotation marks omitted.) Mazzola v. Commissioner of Transportation, 175 Conn. 576, 584, 402 A.2d 786 (1978). "[T]he separability clause is a comparatively modern legislative device, the courts having separated statutes long before its innovation . . . [T]he authority of a court to eliminate invalid elements of an act and yet sustain the valid elements is not derived from the legislature, but rather flows from powers inherent in the judiciary." (Citations omitted; emphasis added; internal quotation marks omitted.) Burton v. Hartford, supra, 144 Conn. 89-90.
In the present case, both the New Haven Code of Ordinances and the housing code contain separability provisions, which create a rebuttable presumption in favor of severability of the invalid portions of the ordinances. Although a portion of the ordinance penalty provision is ultra vires and invalid, this does not mean that the entire ordinance is invalid. Accordingly, the remainder of paragraph 102 of the housing code, and the housing code itself are valid and remain intact. See St. Pierre v. Berlin, Superior Court, judicial district of New Britain, Docket No. CV 03 0523835 (March 18, 2004, Robinson, J.) ( 36 Conn. L. Rptr. 705, 706).
IV STATE'S MOTION TO STRIKE
"Historically, a motion to strike pursuant to Practice Book (1978 Rev.) § 282 had been the proper vehicle to strike a jury claim . . . [It] provided, in pertinent part, that [i]f in the opinion of the court a case or matter is improperly upon a trial or assignment list, it will be stricken from the list, or otherwise disposed of, at the discretion of the court. In 1996, however, Practice Book § 282 was repealed, and no provision was enacted in its place . . . The authors of [Practice Book Annotated (1998 Rev. Sup.)] suggested that, as an alternative to filing a motion to strike from the jury list subsequent to the repeal of § 282, a party wishing to challenge an improper claim for a jury should file an objection to the claim under Practice Book § 14-10 . . . [T]his court will treat the defendant's motion to strike as an objection to the plaintiff's jury claim." (Citations omitted; internal quotation marks omitted.) Trantolo v. State, Superior Court, judicial district of Hartford, Docket No. CV 97 0569475 (June 8, 1999, Teller, J.) ( 25 Conn. L. Rptr. 19, 20). Several other Superior Court opinions have also treated a motion to strike from the jury list as an objection to the claim for a jury trial. See Dime Savings Bank v. Perlucci, Superior Court, judicial district of Stamford, Docket No. CV 96 0151353 (December 29, 2000, Resha, J.); Camarro v. Domingues, Superior Court, judicial district of Fairfield, Docket No. CV 99 0368011 (July 31, 2000, Skolnick, J.) ( 27 Conn. L. Rptr. 642, 643); Wallingford v. Reliance Ins. Co., Superior Court, judicial district of New Haven, Docket No. CV 99 0420955 (January 13, 2000, Silbert, J.) ( 26 Conn. L. Rptr. 270, 274 n. 3).
Accordingly, this court will treat the state's motion to strike as an objection to a jury claim. Because the court has invalidated that portion of paragraph 102 of the housing code pursuant to which the defendant ran a risk of incarceration, the defendant is not entitled to a jury trial for alleged violations of General Statutes § 7-148.
V OTHER CLAIMS OF DEFENDANT
The defendant also relies on a penalty provision of the state building code, General Statutes Section 29-254a, which provides for up to six months incarceration, as authority for the proposition that the penal provision of paragraph 102 of the housing code is authorized by statute. This claim may be disposed of by noting that the defendant is not charged with a violation of any provision of the state building code, but rather, housing violations, specifically, multiple violations of General Statutes § 7-148. The penalty for such violations is fixed by state statute, as previously discussed, as a fine below the statutory threshold for a jury trial.
As a final argument, the defendant in his brief asserts: "[T]he city of New Haven is not a party to this case and should be given an opportunity to appear and be heard if the court is considering striking down a provision of its housing code." The defendant cites no statute or case law in support of this proposition. Moreover, the defendant does not have standing to assert the alleged right of a municipality to notice and a hearing before a portion of an ordinance is invalidated. "If a party is found to lack standing, the court is without subject matter jurisdiction to determine the cause." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 485, 815 A.2d 1188 (2003). Therefore, this court will not consider this claim.
VI CONCLUSION
That portion of paragraph 102 of the housing code imposing a criminal penalty having been found invalid, the defendant's claim to a jury trial is denied. The state's motion to strike is granted. The matter is remanded to the New Haven Housing Session of Superior Court for further proceedings.