Opinion
No. (X02) CV 03-0179515-S
January 5, 2004
Ruling on Motion
At issue in this motion is whether there is a private right of action to enforce federal and state laws requiring government housing agencies affirmatively to promote fair housing.
I
The plaintiffs are alleged to be a neighborhood organization concerned with the quality of life in the Asylum Hill area of Hartford and a low-income African-American resident of that neighborhood. The defendant is the president and executive director of the Connecticut Housing Finance Authority (CHFA). The CHFA by statute is constituted as a public instrumentality and political subdivision of the state, but not a state department, institution, or agency. General Statutes § 8-244(a).
The plaintiffs characterize their suit as challenging the failure of the CHFA to take affirmative steps to prevent racial segregation and high concentrations of poverty in its administration of the federal low-income housing tax credit program (LIHTC). The three-count complaint alleges respectively that the defendant's actions violated state fair housing law, the federal Fair Housing Act, and provisions of the Fair Housing Act and federal regulations, as enforced against the state pursuant to 42 U.S.C. § 1983.
The plaintiffs also allege that they sought a declaratory ruling from the CHFA under the Uniform Administrative Procedure Act, General Statutes § 4-166 et seq. (UAPA), in which the plaintiffs raised issues similar to the ones here, that the CHFA did not respond to the request, and that they seek a declaratory judgment under the UAPA here. (Complaint, ¶¶ 26-29.) The defendant responds in his memorandum that the CHFA is not an "agency" subject to the UAPA. It is true that the declaratory ruling, declaratory judgment, and administrative appeals statutes of the UAPA apply only to the actions of an "agency." See General Statutes §§ 4-166(1) and (3); 4-175(a); 4-176(a); 4-183(a). The CHFA's organizational statute was amended in 1988 to provide that the CHFA "shall not be construed to be a department, institution or agency of the state." Public Acts 1988, No. 88-266 § 1 (codified at General Statutes § 8-244(a)). On the other hand, the UAPA defines "agency" to mean "each state board, commission, department or officer authorized by law to make regulations or to determine contested cases . . ." with exceptions not pertinent here. General Statutes § 4-166(1). The CHFA does have authority to make regulations, General Statutes § 8-250(29)(e); Regs., Conn. State Agencies § 8-248(C-1), and, in fact, has regulations authorizing declaratory rulings. Regs., Conn. State Agencies § 8-248(C-3). Further, General Statutes § 4-185(b) in the UAPA provides that "[n]otwithstanding any other provision of the general statutes to the contrary in existence on July 1, 1989, this chapter shall apply to all agencies and agency proceedings not expressly exempted in this chapter." The chapter containing the UAPA does not expressly exempt the CHFA.
The court need not resolve the question of whether the CHFA is an agency subject to the UAPA declaratory judgment provisions because the defendant does not object on procedural grounds, including sovereign immunity, to the plaintiffs' filing of a declaratory judgment action against him outside the UAPA and the plaintiffs, at oral argument, accordingly agreed not to pursue their UAPA allegation. Of course, the UAPA remedies are only available in the first place if a party presents a matter, such as the validity of a regulation or the application of a statute, that is capable of being decided by a declaratory ruling, declaratory judgment, or a contested case. See General Statutes §§ 4-166(2) and (3); 4-175(a), 4-176(a); 4-183(a).
The defendant originally moved to dismiss on the ground that the statutory and regulatory provisions at issue do not create a private right of action and are not enforceable through 42 U.S.C. § 1983. The defendant argued that the plaintiffs therefore lacked standing. However, although the defendant maintains that the plaintiffs lack statutory aggrievement, the plaintiffs have sufficiently alleged classical aggrievement so as to give the plaintiffs standing and to give the court jurisdiction. (Complaint, ¶¶ 22-25.) See Cottman Transmission Systems, Inc. v. Hocap Corp., 71 Conn. App. 632, 637, 803 A.2d 402 (2002) ("Standing is established by showing that the party claiming it is authorized by statute to bring suit or is classically aggrieved . . ." (internal quotation marks omitted; emphasis added)). See generally id., 636-38.
The issue of whether the statutes in question give the plaintiff a private right of action is appropriately raised on a motion to strike. See Napoletano v. CIGNA Healthcare of Connecticut, Inc., 238 Conn. 216, 224, 249-53, 680 A.2d 127 (1996), cert. denied, 520 U.S. 1103 (1997). In an effort to reach the substantive issues raised in the defendant's motion, the parties agreed at oral argument to consider the present motion to be a motion to strike without prejudice to the defendant's rights to request to revise or to file a second motion to strike raising any appropriate issues not raised in the present motion. Accordingly, the court must construe the allegations in a light most favorable to the plaintiffs and determine whether the complaint states a cause of action upon which relief can be granted. See Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997); Practice Book § 10-39(a)(1).
II
The court begins with an analysis of the second count, because the applicable law forms the basis for the discussion of the other two counts. Paragraph thirty-four of the second count alleges that the defendant's "failure to develop a system to assess and prevent racial segregation in the administration of the LIHTC program violates the CHFA's duty to `affirmatively further fair housing' pursuant to 42 U.S.C. § 3608(d)." (Complaint, second count, ¶ 34.) In response, the defendant asserts that § 3608 does not authorize a private right of action to enforce its provisions.
Because there is no dispute that § 3608 does not expressly authorize a right of action, the question is whether the statute creates an implied right of action. The standard for determining whether a federal statute creates an implied private right of action derives from the United States Supreme Court's decision in Cort v. Ash, 422 U.S. 66 (1975). There the Supreme Court identified four factors to examine:
CT Page 692 First, is the plaintiff "one of the class for whose especial benefit the statute was enacted,". . . that is, does the statute create a federal right in favor of the plaintiff? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? . . . Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? And finally, is the cause of action one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law?
(Internal citations omitted.) Id., 78.
The Cort test has evolved over time. In Touche Ross Co. v. Reddington, 442 U.S. 560 (1979), the Supreme Court stated:
It is true that in Cort v. Ash, the Court set forth four factors that it considered `relevant' in determining whether a private remedy is implicit in a statute not expressly providing one. But the Court did not decide that each of these factors is entitled to equal weight. The central inquiry remains whether Congress intended to create, either expressly or by implication, a private cause of action. Indeed, the first three factors discussed in Cort — the language and focus of the statute, its legislative history, and its purpose . . . are ones traditionally relied upon in determining legislative intent.
(Internal citation omitted.) Id., 575-76.
Recently, in Gonzaga University v. Doe, 536 U.S. 273 (2002), the Supreme Court revisited the first Cort factor of whether "the statute [creates] a federal right in favor of the plaintiff." Although the issue in Gonzaga was whether a party could enforce certain federal statutory provisions under 42 U.S.C. § 1983, the Court explained that "our implied right of action cases should guide the determination of whether a statute confers rights enforceable under § 1983 . . . [I]n either case we must first determine whether Congress intended to create a federal right." (Emphasis in original.) Gonzaga, supra, 536 U.S. 283. The Court observed that:
we have held that "the question whether Congress . . . intended to create a federal right [is] definitely answered in the negative where a statute by its terms grants no private rights to any identifiable class . . . For a statute to create such private rights, its text must be phrased in terms of the persons benefited . . . We have recognized, for example, that Title VI of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972 create individual rights because those statutes are phrased with an unmistakable focus on the benefited class."
(Internal citations and quotation marks omitted; emphasis in original.) Id., 283-84. In a footnote, the Court cited the following language from Titles VI and IX and added the following commentary:
Title VI provides: " No person in the United States shall be subjected to discrimination under any program or activity receiving Federal financial assistance" on the basis of race, color, or national origin . . . Title IX provides: " No person in the United States shall, on the basis of sex . . . be subjected to discrimination under any education program or activity receiving Federal financial assistance." Where a statute does not include this sort of explicit "right- or duty-creating language" we rarely impute to Congress an intent to create a private right of action.
(Internal citations omitted; emphasis in original.) Id., 284 n. 3.
Applying these standards, the court turns to an analysis of 42 U.S.C. § 3608(d). Section 3608 is part of the Fair Housing Act, 42 U.S.C. § 3601 et seq., which Congress enacted as Title VIII of the Civil Rights Act of 1968. See NAACP, Boston Chapter v. Pierce, 624 F. Sup. 1083, 1084, 1088 (D.Mass. 1985), vacated on other grounds, 817 F.2d 149 (1st Cir. 1987). Paragraph (d) of § 3608 provides as follows:
d) Cooperation of Secretary and executive departments and agencies in administration of housing and urban development programs and activities to further fair housing purposes
All executive departments and agencies shall administer their programs and activities relating to housing and urban development (including any Federal agency having regulatory or supervisory authority over financial institutions) in a manner affirmatively to further the purposes of this subchapter and shall cooperate with the Secretary to further such purposes.
"Secretary" refers to the Secretary of Housing and Urban Development. See 42 U.S.C. § 3602(a). The statutes do not define the phrase "executive departments and agencies," but, for the purposes of this motion, the court assumes that the phrase includes state housing authorities such as the CHFA.
It is apparent that this provision is not "phrased in terms of the persons benefited . . ." (Internal quotation marks omitted.) Gonzaga University v. Doe, supra, 536 U.S. 283-84. Unlike the provision of Title VI cited in Gonzaga — " No person in the United States shall be subjected to discrimination under any program or activity receiving Federal financial assistance on the basis of race, color, or national origin" — Section 3608(d) is not a prohibition on acts against members of the public. (Internal quotation marks omitted; emphasis in original.) Id., 284 n. 3 Rather, it is phrased in terms of "executive departments and agencies" and "the Secretary." In fact, a review of § 3608 as a whole reveals that the section defines the various duties of these departments and agencies. The title of § 3608 is, appropriately, "Administration." Although § 3608(d) indirectly benefits members of the public, its focus is on "the person regulated rather than the individuals protected . . ." (Internal quotation marks omitted.) Gonzaga, supra, 536 U.S. 287. Such statutes create "no implication of an intent to confer rights on a particular class of persons." (Internal quotation marks omitted.) Id.
Section 3608 stands in contrast to other provisions of the same subchapter that expressly or clearly benefit members of the public. Section 3613(a)(1)(A) provides that "an aggrieved person may commence a civil action in an appropriate United States district court or State court not later than 2 years after the occurrence or the termination of an alleged discriminatory housing practice . . ." Section 3602(f) defines a "discriminatory housing practice" as "an act that is unlawful under section 3604, 3605, 3606, or 3617 of this title . . . " This list obviously does not include § 3608. In view of these provisions, it is "unlikely that Congress absentmindedly forgot to mention an intended private action against HUD under section 3608(d)." (Internal quotation marks omitted.) Latinos Unidos de Chelsea v. Secretary of Housing and Urban Development, 799 F.2d 774, 793 (1st Cir. 1986).
Section 3604, for example, provides in part that "it shall be unlawful — (a) To refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin." See Avalon Bay Communities, Inc. v. Orange, 256 Conn. 557, 591-93, 775 A.2d 284 (2001).
Largely for these reasons, the majority of cases addressing the issue have held that § 3608 does not create a private right of action. See id., 791-93; Puerto Rico Public Housing v. HUD, 59 F. Sup.2d 310, 322-24 (D.P.R. 1999); Lee v. Pierce, 698 F. Sup. 332, 342 (D.D.C. 1988); Pleune v. Pierce, 697 F. Sup. 113, 119-20 (E.D.N.Y. 1988); NAACP, Boston Chapter v. Pierce, 624 F. Sup. 1083, 1084, 1086-90 (D.Mass. 1985), vacated on other grounds, 817 F.2d 149 (1st Cir. 1987). The plaintiffs contend that these cases hold only that sovereign immunity bars a direct action against the Department of Housing and Urban Development (HUD) or its Secretary and that therefore HUD actions are reviewable under the Administrative Procedure Act, 5 U.S.C. § 701 et seq. (APA), which contains a sovereign immunity waiver. However, while the courts in these cases do acknowledge the sovereign immunity bar to a direct action against HUD under § 3608, they also separately analyze whether § 3608 creates a private right of action under Cort. See, e.g., Puerto Rico Public Housing v. HUD, supra, 59 F. Sup.2d 320-24; NAACP, Boston Chapter v. Pierce, supra, 624 F. Sup. 1085-90. Logically, if the defect in § 3608 is that it "does not identify the class, if any, which Congress intended to benefit," NAACP, Boston Chapter v. Pierce, supra, 624 F. Sup. 1087, that defect does not disappear when a public housing agency, as opposed to HUD or its Secretary, is the defendant. Thus, both statutory analysis and the case law support the conclusion that § 3608 does not create an implied right of private action.
Two of the cases address the issue in the context of subsection (e)(5) of § 3608, rather than subsection (d)(5). See Puerto Rico Public Housing v. HUD, supra, 59 F. Sup.2d 322-24; Pleune v. Pierce, supra, 697 F. Sup. 119-20. Subsection 3608(e)(5) imposes parallel duties on the Secretary "affirmatively to further the policies" of the Fair Housing Act. 42 U.S.C. § 3608(e)(5). Accordingly, these two subsections deserve similar treatment. See Puerto Rico Public Housing v. HUD, supra, 59 F. Sup.2d 324.
The court has examined the cases cited by the plaintiff for the proposition that "the Second Circuit has consistently found § 3608 to be enforceable against the federal, state and local governments, both directly and through § 1983 or the [Administrative Procedure Act]." (Plaintiff's memorandum, p. 8.) None of these cases directly holds that § 3608 creates a private right of action. Moreover, the original case, Otero v. New York Housing Authority, 484 F.2d 1122 (2d Cir. 1973), arose before the 1975 decision in Cort. A more recent decision from within the Second Circuit has held that § 3608 does not create a private right of action, without any apparent need to cite the Otero line of cases. See Pleune v. Pierce, supra, 697 F. Sup. 119-20. The court has located only one case clearly holding that § 3608 creates an implied right of action and that case did not apply the Cort test See Young v. Pierce, 544 F. Sup. 1010, 1017-18 (E.D.Tex. 1982).
The plaintiffs claim in their brief that the second count also states a cause of action under 42 U.S.C. § 3604. The second count, however, does not specifically cite § 3604 but instead alleges generally that the defendant's actions violate "the federal Fair Housing Act, 42 U.S.C. § 3601 et seq." (Complaint, second count, ¶ 33.) It is not clear from the complaint whether the plaintiffs intend to refer to § 3604, § 3608, or some other section. Practice Book § 10-3 requires that "[w]hen any claim made in a complaint . . . is grounded on a statute, the statute shall be specifically identified by its number." The plaintiff's second count does not comply with this rule at this time. See Rollins Leasing Corp. v. Metro-North Commuter Railroad Co., Superior Court, judicial district of Waterbury, Docket No. 165745 (November 21, 2002, Hodgson, J.) ( 33 Conn. L. Rptr. 383). While a court should deny a motion to strike if any part of a count states a cause of action, see Bennett v. Hamburg, Superior Court, judicial district of Waterbury, Docket No. 167682 (January 2, 2003, Sheldon, J.), in this case the allegations regarding § 3608 are deficient substantively and the allegation under "§ 3601 et seq." is deficient procedurally. Accordingly, the court grants the motion to strike the second count.
III
In count three, the plaintiffs seek to enforce § 3608 and 26 C.F.R. § 1.42-9(a), a regulation governing the LIHTC program, through 42 U.S.C. § 1983. Section 1983 provides that "[e]very person who, under color of [state law or custom] subjects or causes to be subjected, any citizen of the United States, or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured."
No dispute exists here that the CHFA, while not a "state agency" for some purposes, see General Statutes § 8-244(a), acts under the color of state law for purposes of § 1983. Rather, the central issue is whether a party can enforce § 3608 through § 1983, even if § 3608 does not confer a direct right of action. The answer to this question lies primarily in the language in Gonzaga relied upon above: "our implied right of action cases should guide the determination of whether a statute confers rights enforceable under § 1983 . . . [I]n either case we must first determine whether Congress intended to create a federal right." (Emphasis in original.) Gonzaga, supra, 536 U.S. 283. Accord id., 290 ("if Congress wishes to create new rights enforceable under § 1983, it must do so in clear and unambiguous terms — no less and no more than what is required for Congress to create new rights enforceable under an implied private right of action"). The court has already conducted the analysis required under Gonzaga and concluded that § 3608 does not create a federal right as defined in that case. Thus, the plaintiff does not appear to gain any advantage by weaving § 3608 through § 1983 as opposed to suing under § 3608 directly.
Section 1983 is thus best viewed as a "mechanism for enforcing individual rights `secured' elsewhere, i.e., rights independently `secured by the Constitution and laws' of the United States." Id., 285. If Congress did not intend to create a federal right, then § 1983 offers no remedy. Id., 284 n. 4. Section 1983 may serve as a means of avoiding sovereign immunity when a party sues a state official under a statute that does create a private right of action.
The plaintiff objects to this approach on two main grounds. First, the plaintiff contends that Gonzaga applies only to cases, unlike the present one, arising under the article I, Section 8 spending clause of the Constitution. Although Gonzaga itself was a spending clause case, the language of the decision is not limited to such cases. See, e.g., id., 286 ("where the text and structure of a statute provide no indication that Congress intends to create new individual rights, there is no basis for a private suit, whether under § 1983 or under a private right of action"); id., 290 ("if Congress wishes to create new rights enforceable under § 1983, it must do so in clear and unambiguous terms — no less and no more than what is required for Congress to create new rights enforceable under an implied private right of action"). Recent cases have applied Gonzaga to statutes enacted pursuant to the article I, Section 8 commerce clause. See Northern Natural Gas Co. v. Munns, 254 F. Sup.2d 1103, 1117-19 (S.D. Iowa 2003); Henry's Wrecker Service v. Prince George's County, 214 F. Sup.2d 541, 543-46 (D.Md. 2002). The court discerns no basis to limit Gonzaga to spending clause cases.
The plaintiff also suggests that the question of whether a statute is enforceable under § 1983 depends on the application of the three-part test set forth in Blessing v. Freestone, 520 U.S. 329 (1997). The Gonzaga Court described this test as one "allowing plaintiffs to enforce a statute under § 1983 so long as the plaintiff falls within the general zone of interests that the statute is intended to protect; something less than what is required for a statute to create rights enforceable directly from the statute itself under an implied private right of action." Gonzaga, supra, 536 U.S. 282-83. The Court then clarified that it "now [rejects] the notion that our cases permit anything short of an unambiguously conferred right to support a cause of action brought under § 1983." Id., 283. Subsequent cases have held that Gonzaga "tightened," Henry's Wrecker Service v. Prince George's County, supra, 214 F. Sup.2d 543-44, or "sharpened [the] focus" of the Blessing test without explicitly abandoning it. Northern Natural Gas Co. v. Munns, supra, 254 F. Sup.2d 1117.
"First, Congress must have intended that the provision in question benefit the plaintiff . . . Second, the plaintiff must demonstrate that the right assertedly protected by the statute is not so `vague and amorphous' that its enforcement would strain judicial competence . . . Third, the statute must unambiguously impose a binding obligation on the States. In other words, the provision giving rise to the asserted right must be couched in mandatory rather than precatory terms." (Internal citations omitted.) Blessing, supra, 520 U.S. 340-41.
The plaintiff cites two post- Gonzaga cases that rely on Blessing. One of them, Langlois v. Abington Housing Authority, 234 F. Sup.2d 33, 37-38, 71-75 (D.Mass. 2002), does hold that a party can enforce § 3608 through § 1983. See also Rabin v. Wilson-Coker, 266 F. Sup.2d 332 (D.Conn. 2003). These cases, however, focus on whether the statute in question was intended to "benefit" the plaintiffs without analyzing how Gonzaga changed the test to one concentrating on whether the statute contains an "unambigously conferred right" or text "phrased in terms of the persons benefited." (Internal quotation marks omitted.) Gonzaga, supra, 536 U.S. 283-84. The plaintiff also cites Thompson v. United States Department of Housing and Urban Development, No. MJG-95-309, slip op. at 12 (D.Md. November 26, 2003), as a recent case holding that the plaintiffs there — who were participants in public housing programs — can enforce § 3608 through § 1983. The Thompson Court did not cite Gonzaga or, for that matter, any case law at all. Accordingly, these cases are not persuasive.
Thus, the test of enforceability under § 1983 remains whether the text of the statute is "phrased in terms of the persons benefited." (Internal quotation marks omitted.) Gonzaga, supra, 536 U.S. 284. Because § 3608 is not phrased in terms of the public, but rather focuses on governmental actors, the plaintiffs cannot enforce § 3608 through 42 U.S.C. § 1983.
The plaintiffs fare no differently with their related claim in the third count that the defendant's actions violate 26 C.F.R. § 1.42-9(a). The right to enforce federal regulations depends on the existence of a private right of action to enforce the statute that the regulations implement. See Alexander v. Sandoval, 532 U.S. 275, 285-86 (2001). The plaintiffs agree that there could be no private enforcement of the regulations unless they implement 42 U.S.C. § 3608 and unless § 3608 is enforceable. The court need not address the question of whether the regulations implement § 3608 because it has found that § 3608 does not create a private right of action and is not enforceable under § 1983. Accordingly, the plaintiffs do not state a claim upon which relief can be granted in count three.
IV
The plaintiffs' first count alleges that the defendant's actions violate General Statutes § 8-37cc(b). This statute provides that "[e]ach housing agency shall affirmatively promote fair housing choice and racial and economic integration in all programs administered or supervised by such housing agency."
Somewhat confusingly, the CHFA, although not an "department, institution or agency of the state," General Statutes § 8-244(a), is considered a "housing agency." General Statutes § 8-37aa.
There is no dispute that § 8-37cc(b) does not expressly grant the plaintiffs a right to sue. The question here again is whether it impliedly does so. In Napoletano v. CIGNA Healthcare of Connecticut, Inc., supra, 238 Conn. 249, our Supreme Court modified the Cort analysis to create a test for determining whether a Connecticut statute creates an implied right of action. The factors in the Napoletano test are: "First, is the plaintiff one of the class for whose . . . benefit the statute was enacted? Second, is there any indication of legislative intent, explicit or implicit, either to create a remedy or to deny one? Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff?" (Internal quotation marks omitted.) Napoletano, supra, 238 Conn. 249.
The Napoletano Court did not include the question asked in Cort — "does the statute create a federal right in favor of the plaintiff?" — as part of the first factor. Cort v. Ash, supra, 422 U.S. 78. Also, the fourth factor in the Cort test — "whether the cause of action [is] one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law," — obviously does not apply to interpretation of state law. Id. See Napoletano v. CIGNA Healthcare of Connecticut, Inc., supra, 238 Conn. 250 n. 32.
The application of the first factor reveals that § 8-37cc(b) contains no explicit designation of who it seeks to benefit. It is unlike the statute in Skakel v. Benedict, 54 Conn. App. 663, 685-88, 738 A.2d 170 (1999), in which the Appellate Court found that a person who sought treatment for alcohol abuse had a private cause of action based in part on the fact that the statute in question, General Statutes § 17a-688(c), made express reference to the confidentiality of the "identity, diagnosis, prognosis or treatment of any such patient." Under § 8-37cc(b), the only reference to an entity other than "[e]ach housing agency" is to the "programs administered or supervised by such housing agency." Thus, at most, persons participating in or who seek to participate in housing agency "programs" may be the beneficiaries of § 8-37cc(b) in that each housing agency program in which they participate or seek to participate must, according to the statute, "promote fair housing choice and racial and economic integration."
Section 17a-688(c) provides:
No person, hospital or treatment facility may disclose or permit the disclosure of, nor may the department disclose or permit the disclosure of, the identity, diagnosis, prognosis or treatment of any such patient that would constitute a violation of federal statutes concerning confidentiality of alcohol or drug patient records and any regulations pursuant thereto, as such federal statutes and regulations may be amended from time to time. The department shall adopt regulations, in accordance with chapter 54, to protect the confidentiality of any such information that is obtained by the department.
The plaintiffs do not claim to be participants in the LIHTC program at issue here. Rather, they allege that they are opponents of the way the defendant has implemented the program. It is true that the plaintiffs, according to their allegations, seek the statutory objective of fair housing choice and racial and economic integration in their neighborhood. But to construe § 8-37cc(b) to include opponents — and logically proponents — of housing agency programs who are not actual or putative participants is to define the set of beneficiaries in a potentially limitless and therefore meaningless way.
The only other indication of who the legislature sought to benefit in enacting the statute comes from a review of subsection (a) of § 8-37cc. Subsection (a) provides that each housing agency "shall . . . serve households" of particular incomes. Again, the beneficiaries are the actual or intended participants in housing agency programs. Thus, upon review of the statute as a whole, there is little evidence that the plaintiffs are among the class for whose benefit the statute was enacted.
In full, § 8-37cc(a) provides:
Each housing agency, as defined in section 8-37aa, shall, within available resources and to the extent practicable, serve households with incomes less than fifty per cent of the area median income, including households with incomes less than twenty-five per cent of the area median income. In administering its programs each housing agency shall attempt to serve households in the lower range of the income group for which the housing program was developed.
The court next examines the second factor of whether there is any indication of legislative intent, explicit or implicit, either to create a remedy or to deny one. The language of the statute provides no indication either way. The legislative history is similarly unilluminating. Paragraph (a) of § 8-37cc became law as a result of § 13 of Public Acts 1990, No. 90-257, entitled "An Act Concerning Programs to Prevent Homeless." The legislature added subsection (b) the next year in § 2 of Public Acts 1991, No. 91-362, which was entitled "An Act Promoting Choice and Racial and Economic Integration." The floor debates on Public Act 91-362 contain several statements from the sponsors concerning the overall purpose of the legislation and its laudable social objectives. See 34 H.R. Proc., Pt. 17, 1991 Sess., p. 160-61, 166, remarks of Representative Figueroa; 34 S.Proc., Pt. 1, 1991 Sess., p. 148, remarks of Senator Jepsen. But they are absent of any mention of a private right of action or other remedy to enforce what would become § 8-37cc(b).
The third factor addresses whether it is consistent with the underlying purposes of the legislative scheme to imply a right of action for the plaintiff. In one sense, it would be consistent to allow a private right of action, because the plaintiff seeks to enforce the statute's overall objective of promoting fair housing choice and racial and economic integration and there is nothing in the legislative scheme that prohibits the plaintiff from doing so. Further, the defendant's position that the CHFA is not a state agency subject to the declaratory ruling, declaratory judgment, and administrative appeal provisions of the Uniform Administrative Procedure Act, if a valid position, may also weigh in favor of inferring a private right of action. See Napoletano, supra, 238 Conn. 252; note 1 supra. But see Reynolds v. Connecticut Department of Public Utility Control, 48 Conn. Sup. 188, 835 A.2d 134, 30 Conn. L. Rptr. 463 (2001), aff'd., 266 Conn. 606, 834 A.2d 58 (2003) (party has neither a private right of action nor an administrative appeal).
On the other hand, there are several reasons why construing § 8-37cc(b) to include a private right of action would not be consistent with the legislative scheme. First, § 8-37cc(b) is located in Chapter 127c of the General Statutes, which is entitled "Department of Economic and Community Development: Housing. General Provisions." This chapter consists largely of organizational statutes defining the duties of the department of economic and community development (the department) with particular reference to housing. There are no provisions granting a right of action against the department or the CHFA in favor of program participants or other interested parties.
In fact, the legislature provided that oversight of the CHFA's programs would take place by requirements that the CHFA file reports for review by legislative and executive branch agencies. Of critical importance is the fact that Public Act 91-362, the same public act that created § 8-37cc(b), contained a companion provision, now codified in General Statutes § 8-37bb(a), requiring an annual report to the General Assembly that "[analyzes] the households served under each program by race . . . [and] also [analyzes] the efforts, and the results of such efforts, of each agency in promoting fair housing choice and racial and economic integration." Public Acts 1991, No. 91-362 § 1. Indeed, as if to emphasize the point, the public act included a second, nearly identical provision that required the same report to the legislature to include information on the racial composition of the occupants and persons on the waiting list of each state-assisted housing project. The public act also required the commissioner of the department and the CHFA to file a long-range state housing plan with the General Assembly every five years that provided information on "affirmative fair housing market activities and programs and an analysis of occupancy results of affirmative fair marketing plans . . ." 1991 Public Acts, No. 91-362, § 4. Thus, at the same time that the legislature created the obligation for the CHFA to promote fair housing and integration in its programs, the legislature provided an enforcement mechanism through the legislative and political process. This evidence weighs strongly against the conclusion that the legislative scheme contemplated enforcement through the judicial system. See also General Statutes § 8-37u(c) (requiring the CHFA to submit to the commissioner an annual operating plan that is consistent with the five-year plan required in § 8-37t); § 8-37u(d) (authorizing the secretary of the office of policy and management to convene a panel with the chairman of the CHFA and the commissioner to resolve any inconsistencies between the report required under § 8-37u(c) and the five-year plan).
The new provision stated:
Each report submitted under this section shall also document the efforts of the agency in promoting fair housing choice and racial and economic integration and shall include data on the racial composition of the occupants and persons on the waiting list of each housing project which is assisted under any housing program established by the general statutes or special act or which is supervised by the agency. The provisions of this subsection shall not be construed to require disclosure of such information by any occupant or person on a waiting list.
Public Acts 1991, No. 91-362 § 1 (codified at General Statutes § 8-37bb(b)).
1999 Public Acts, No. 99-94, § 2 added that the report "shall include data on the racial composition of the occupants and persons on the waiting list of each housing project which is assisted under any housing program established by the general statutes or special act or which is supervised by the commissioner or the Connecticut Housing Finance Authority." Both public acts are now codified at General Statutes § 8-37t(a)(3).
This analysis of the relevant factors tips in favor of the conclusion that § 8-37cc(b) does not create an implied private right of action. The plaintiffs argue, however, that the Napoletano court created a presumption favoring a right of action by declaring that "where the legislature wishes to limit enforcement of a statute to an administrative body, it has expressly done so." Napoletano, supra, 238 Conn. 251. This statement, however, literally refers to a situation in which plaintiffs sue private parties seeking to enforce a statute in addition to or lieu of a designated agency. See id., 217-24, 251-53 (plaintiffs sued insurance company seeking to enforce statute ordinarily enforced by commission on hospitals and health care); see also Skakel v. Benedict, supra, 54 Conn. App. 688 (legislature did not designate any agency to enforce statute regarding confidentiality of alcohol patient records). The case here presents a situation not addressed in Napoletano of whether the legislature intended to authorize private lawsuits against a state authority as a means of policing that authority.
There are several other factors that weigh against finding a presumption favoring a right of action and, if anything, favor a presumption the other way. First, the Napoletano Court relied on a version of the Cort test that the United States Supreme Court no longer uses. As explained, the Cort test has evolved into a determination of whether the legislature intended to create a right "phrased in terms of the persons benefited . . ." Gonzaga, supra, 536 U.S. 83-84. Our Supreme Court has apparently not had an opportunity to reconsider Napoletano in view of the changes to the Cort test on which it relied. Were our Supreme Court to track the federal approach, the plaintiff's case would undoubtedly fail, because the legislature clearly did not phrase § 8-37cc(b) in terms of advocates for fair housing or any other group of persons.
An additional basis to follow the federal approach in this case is our Supreme Court's pronouncement that "in addressing claims brought under both federal and state housing laws, we are guided by the cases interpreting federal fair housing laws; 42 U.S.C. § 3601 through 3631; despite differences between the state and federal statutes." (Internal quotations omitted.) Avalon Bay Communities, Inc. v. Orange, supra, 256 Conn. 591. In this case, the wording of § 8-37cc(b) and 42 U.S.C. § 3608 is similar and, as discussed, the vast majority of federal courts applying Cort and its progeny have construed § 3608 not to include a private right of action.
A related factor that the Napoletano Court did not cite and apparently did not consider prior case law holding that "[w]hen the legislature has authorized supplementary private causes of action, it has generally done so expressly." Middletown v. Hartford Electric Light Co., 192 Conn. 591, 596, 473 A.2d 787 (1984). Accord Holly Hill Holdings v. Lowman, 30 Conn. App. 204, 220, 619 A.2d 853, aff'd., 226 Conn. 748, 628 A.2d 1298 (1993). This principle is simply a variant of the general rule, expressed often both before and after Napoletano, that "[I]f the language of a statute is plain and unambiguous, we need look no further than the words themselves because we assume that the language expresses the legislature's intent." (Internal quotation marks omitted.) Macdermid, Inc. v. Department of Environmental Protection, 257 Conn. 128, 154, 778 A.2d 7 (2001); American Universal Insurance Co. v. DelGreco, 205 Conn. 178, 193, 530 A.2d 171 (1987). Although the Supreme Court abandoned this plain language rule in State v. Courchesne, 262 Conn. 537, 816 A.2d 562 (2003), the Court affirmed that, in statutory construction, "the language of the statute is the most important factor to be considered . . ." Id., 563. Cf. Public Acts 2003, No. 03-154 (providing that "[t]he meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes"). The application of these rules weighs strongly against construing a statute to include a private right of action not expressed in the statute's language.
Indeed, the judicial creation of an implied right of action is ultimately an intrusion on the legislative power. It is difficult to imagine that a majority of legislators intended to create something so significant as a private right of action but chose not to express it in the statute. For the court to interpret this legislative silence as the creation of a new species of lawsuits is to legislate judicially in a way contrary to the apparent desire of legislators who were duly elected by the people. In this situation, moreover, there is a danger that judges can easily mold their interpretations of what the legislators silently thought to mirror the public policies that these judicial officials favor.
For all these reasons, the court declines to construe § 8-37cc(b) to include an implied private right of action.
V
The court strikes the complaint.
It is so ordered.
CARL S. SCHUMAN, JUDGE, SUPERIOR COURT.