Opinion
No. CV 06 4010537 S
April 16, 2007
MEMORANDUM OF DECISION RE MOTION TO STRIKE (#101)
FACTS
The plaintiffs, Beacon Point Marine, Inc. and Richard Kral (collectively Beacon Point), filed a summons and complaint on November 3, 2006, requesting that the court order a writ of mandamus to compel Gina McCarthy, the commissioner of the department of environmental protection (commissioner), to impose a civil penalty on certain lobster fishermen for violations of General Statutes § 22a-342a. The plaintiffs allege the following in their complaint: Beacon Point owns docks on the Mianus River for which it holds a state permit. Beacon Point leases space on its docks to several tenants who use the space to dock their boats. Beacon Point tenants and others leave the docks in their boats and travel in the Mianus River stream channel to and from the Long Island Sound.
The complaint incorrectly refers to the Miamus River.
Lobster fishermen have been maintaining docks in the stream channel without permits to do so. It is alleged that the placement of these docks, which the fishermen use to store their equipment at night, interferes with boat travel and other uses and is hazardous. It is further alleged that Beacon Point's business has been irreparably harmed in that its tenants have decided not to renew their leases in the future as a result of the placement of the lobster fisherman's docks.
The commissioner disclosed that the lobster fishermen are in the process of applying for a permit with the department of environmental protection (department) pursuant to General Statutes § 22a-361. That statute states in relevant part that "[n]o person . . . shall . . . maintain any structure . . . in the tidal, coastal or navigable waters of the state . . . until such person . . . has submitted an application and secured from said commissioner a certificate or permit for such work and has agreed to carry out any such conditions necessary to the implementation of such certificate or permit." General Statutes § 22a-361. Although the department denied the fishermen's first application due to the location of the docks, the department is currently reviewing their application to locate the docks at an alternative site.
On January 3, 2007, the commissioner filed a motion to strike the complaint for failure to state a claim on which relief may be granted. Beacon Point submitted an objection to the commissioner's motion to strike on January 30, 2007, and the matter was argued on February 20, 2007.
DISCUSSION
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Asylum Hill Problem Solving Revitalization Assn. v. King, 277 Conn. 238, 246, 890 A.2d 522 (2006).
The commissioner moves to strike the complaint on the following ground: An order of mandamus cannot compel the performance of a discretionary act and the assessment of civil penalties pursuant to § 22a-342a is a discretionary act. Beacon Point objects to the motion to strike on the basis that, pursuant to § 22a-342a, an assessment of a civil penalty is a mandatory act and that a writ of mandamus is the appropriate vehicle for its request for relief. Specifically, Beacon Point asserts that the use of the term "shall" in the statute in reference to the imposition of a civil penalty is unambiguous and must be construed as mandatory. Furthermore, Beacon Point contends that since the law imposes a mandatory duty on the commissioner to assess the penalty, it has a clear legal right to have the commissioner perform that duty and it does not have any other specific adequate remedy.
A writ of mandamus is "an extraordinary remedy, available in limited circumstances for limited purposes . . . The court's 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." (Internal quotation marks omitted.) Jalowiec Realty Associates, L.P. v. Planning and Zoning Commission, 278 Conn. 408, 412, 898 A.2d 157 (2006). Regarding the first element, which is the one on which the commissioner premises her motion to strike, the Supreme Court has explained, "a writ of mandamus will lie only to direct performance of a ministerial act which requires no exercise of a public officer's judgment or discretion." (Internal quotation marks omitted.) AvalonBay Communities, Inc. v. Sewer Commission, 270 Conn. 409, 422, 853 A.2d 497 (2004). Accordingly, the court should review the statute at issue to determine whether the commissioner has discretion to assess civil penalties. Id.
Section 22a-342a states in relevant part: "Any person who places any obstruction, encroachment or hindrance within any stream channel encroachment line established by the Commissioner of Environmental Protection pursuant to section 22a-342 without a permit issued under said section, or is maintaining any such obstruction, encroachment or hindrance placed without such a permit, or in violation of the terms and conditions of such permit shall be liable for a civil penalty of not more than one thousand dollars for each offense . . . The Commissioner of Environmental Protection may request the Attorney General to bring a civil action in the superior court for the judicial district of Hartford to seek imposition and recovery of such civil penalty." Not surprisingly, the commissioner focuses on the last sentence and the use of the word "may," while Beacon Point relies on the first sentence and the use of the word "shall."
Because our appellate courts have not decided whether this statute imposes a mandatory or discretionary obligation on the commissioner this court is required to engage in statutory interpretation to determine what the legislature intended to convey in its use of the words shall and may in this context. "When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature . . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply . . . In seeking to determine that meaning, General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered." AvalonBay Communities, Inc. v. Zoning Commission, 280 Conn. 405, 413, 908 A.2d 1033 (2006).
In addition, "[i]t is an accepted principle of statutory construction that, if possible, the component parts of a statute should be construed harmoniously in order to render an overall reasonable interpretation." (Internal quotation marks omitted.) Barco Auto Leasing Corp. v. House, 202 Conn. 106, 115, 520 A.2d 162 (1987). The Supreme Court has articulated that "[t]he intent of the legislature is to be found not in an isolated phrase or sentence but, rather, from the statutory scheme as a whole." (Internal quotation marks omitted.) Cannata v. Dept. of Environmental Protection, 239 Conn. 124, 143, 680 A.2d 1329 (1996). Thus, the court is "required to read statutes together when they relate to the same subject matter . . . Accordingly, [i]n determining the meaning of a statute . . . we look not only at the provision at issue, but also to the broader statutory scheme to ensure the coherency of our construction." (Internal quotation marks omitted.) Teresa T. v. Ragaglia, 272 Conn. 734, 748, 865 A.2d 428 (2005).
"In order to determine whether a statute's provisions are mandatory we have traditionally looked beyond the use of the word `shall' and examined the statute's essential purpose." Crest Pontiac Cadillac, Inc. v. Hadley, 239 Conn. 437, 446, 685 A.2d 670 (1996). "[T]he use of the word `shall,' though significant, does not invariably create a mandatory duty . . . The test to be applied in determining whether a statute is mandatory or directory is whether the prescribed mode of action is the essence of the thing to be accomplished, or in other words, whether it relates to a matter of substance or a matter of convenience . . . If it is a matter of substance, the statutory provision is mandatory. If, however, the legislative provision is designed to secure order, system and dispatch in the proceedings, it is generally held to be directory, especially where the requirement is stated in affirmative terms unaccompanied by negative words." (Citations omitted, internal quotation marks omitted.) Id., 445-46 (holding that use of "shall" in General Statutes § 4-180(c) in regard to mailing notice of decision to parties is not matter of substance and is directory in nature); see also Teresa T. v. Ragaglia, supra, 272 Conn. 734 (holding that it was clear from language of General Statutes § 17a-101g, as part of broader statutory scheme, that use of "shall" was designed to provide order, system and dispatch in department of children and families response to reports of abuse and gave commissioner discretion in choosing appropriate remedy). "Furthermore, if there is no language that expressly invalidates any action taken after noncompliance with the statutory provisions, the statute should be construed as directory." Crest Pontiac Cadillac, Inc. v. Hadley, supra, 239 Conn. 446.
In this instance, the term "shall" should be interpreted as directory, thus allowing the commissioner to impose civil penalties at her discretion. According to the statutory scheme, the role of the commissioner is to "carry out the environmental policies of the state and [she] shall have all powers necessary and convenient to faithfully discharge this duty." General Statutes § 22a-5. Moreover, "[t]he commissioner may initiate and receive complaints as to any actual or suspected violation of any statute, regulation, permit or order administered, adopted or issued by [her]." General Statutes § 22a-6(a)(3). In addition, the civil penalty provisions that apply to the environmental protection statutes, including § 22a-342a, provide in relevant part: "If the commissioner has reason to believe that a violation has occurred for which a civil penalty is authorized by this section, he may send to the violator . . . a notice . . . If a hearing is requested then, after a hearing and upon a finding that a violation has occurred, the commissioner may issue a final order assessing a civil penalty under this section which is not greater than the penalty stated in the notice . . . Any civil penalty may be mitigated by the commissioner upon such terms and conditions as he in his discretion deems proper or necessary upon consideration of the factors set forth in subsection (b) hereof." General Statutes § 22a-6b(c) and (d). Furthermore, the purpose of § 22a-342a is to enforce and secure order and compliance with the permit scheme of § 22a-342 for the designated stream channel boundary lines in the state's waterways. The commissioner's authority to impose a civil penalty is directory in nature because it was implemented as a matter of convenience to compel individuals without permits to refrain from encroaching on the stream channel boundary lines.
Moreover, a review of the rest of the language of § 22a-342a even more conclusively establishes that the statute is discretionary. The first sentence of § 22a-342a states in relevant part that one who is in "violation of the terms and conditions of such permit shall be liable for a civil penalty." (Emphasis added.) The statute does not state that one who violates the conditions "shall be assessed" a civil penalty. The last sentence of the statute then states that "[t]he [commissioner] may request the Attorney General to bring a civil action in the [S]uperior [C]ourt for the judicial district of Hartford to seek imposition and recovery of such civil penalty." Therefore, these provisions read together imply a discretionary nature to the statute in that a violator shall be liable but the imposition of penalties is still at the discretion of the commissioner. A review of the legislative history of § 22a-342a reveals that the originally proposed language was changed from "shall be assessed a civil penalty" to "shall be liable for a civil penalty." Conn. Joint Committee on Environmental Hearings, 1987 Sess., p. 8951-52. The term "assess" means to actually impose a fine. To "be liable for" infers that a fine may potentially be assessed, but is far less definite. The word "may" generally imports permissive conduct and conferral of discretion. See Commission on Human Rights Opportunities v. Truelove Maclean, Inc., 238 Conn. 337, 349, 680 A.2d 1261 (1996). Section 22a-342a must be interpreted to allow the commissioner to use discretion in imposing civil penalties on violators of § 22a-342 because it affords the commissioner the option to bring a civil action and does not, however, impose any repercussions on the commissioner for failing to act on a violation. Furthermore, taken as whole, title 22a provides the commissioner with wide discretion in addressing violators. See also Cadlerock Properties Joint Venture, L.P. v. Commissioner of Environmental Protection, 253 Conn. 661, 757 A.2d 1 (2000). This discretion is exemplified by the language of § 22a-6(a)(3), stating that the commissioner "may initiate or receive complaints" for violations of the statutory prescribed standards, and § 22a-6b(d), stating that "[a]ny civil penalty may be mitigated by the commissioner upon such terms and conditions as [she] in [her] discretion deems proper and necessary . . ." It is apparent that the commissioner is afforded with the power to exercise his or her judgment in assessing, calculating and imposing civil penalties for the violation of environmental regulations. Thus, the plaintiff has not satisfied the first required element for bringing a mandamus action.
Conclusion
For the reasons set forth above, this court determines that the statute invoked by Beacon Point does not set forth merely ministerial duties of the commissioner. Therefore, a writ of mandamus is inappropriate, and the motion to strike the complaint is granted.