Board of Education v. State Board of Education

BERDON, J.,

dissenting. This case raises very thorny and difficult questions concerning article seventh of the constitution of Connecticut that forbids the state from giving preference “by law to any religious society or denomination in the state” with respect to what transportation the plaintiff, the board of education of the town of Stafford (school board), is required to furnish at taxpayers’ expense to a religious school.

The majority, however, purposefully reaches out to decide the issues in this case even though they are moot; that is, the days that transportation was not provided have long since passed and no practical relief can be granted by this court.1 “It is a well-settled general rule that the existence of an actual controversy is an *790essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow. ... An actual controversy must exist not only at the time the appeal is taken, but also throughout the pendency of the appeal.” (Internal quotation marks omitted.) Napoletano v. CIGNA Healthcare of Connecticut, Inc., 238 Conn. 216, 230, 680 A.2d 127 (1996), cert. denied, 520 U.S. 1103, 117 S. Ct. 1106, 137 L. Ed. 2d 388 (1997).

Moreover, I disagree with the majority’s conclusion that this appeal falls within the doctrine that an otherwise moot case is justiciable if it presents an issue of public importance that is capable of repetition but likely to evade review. Loisel v. Rowe, 233 Conn. 370, 382-88, 660 A.2d 323 (1995). The majority concludes that this case meets the first prong of the Loisel test because “[o]ne month was too short a time for the issues raised by the denial [of transportation] to have been fully litigated in the courts.” First, I am unaware of any argument in the briefs or any evidence in the record that the school board’s decision not to transport nonpublic school students on certain days is “strongly likely to become moot in the substantial majority of cases in which it arises . . . .” (Emphasis added.) Loisel v. Rowe, supra, 384. Consequently, the “urgency of deciding [this case] is significantly reduced.” Id. Second, the record in this case belies that claim. The parents who initiated the complaint in this case, Anthony Armelin and Lynda Schold (parents), together with all the other parents, were notified on January 26, 1993, when the school board provided St. Edward School with the public school calendar for the 1993-94 school year, that April 18, 19 and 20, 1994, would be vacation days for the school system and that transportation would not be provided on those days. Subsequently, because of *791cancellations due to inclement weather, sometime prior to March 14,1994, St. Edward School rescheduled three additional school days on April 18,19 and 20. On March 14,1994, the superintendent of schools for the Norwich diocese (the diocese that includes St. Edward School) and the parents were put on notice that no transportation would be provided when the superintendent’s request for such transportation was denied by the school board.

Notwithstanding the fact that the timely notice allowed the parents to appeal, at least, to the school board, if not further, before April 18, 1994, the parents took no action until September 30,1994, more than five months after the days in question. Furthermore, the school board’s contention that it is not obligated pursuant to General Statutes § 10-281 to provide transportation to St. Edward School students when public schools are closed does not make it likely that it will deny such transportation in the future. Indeed, since the 1984-85 school year through September 19, 1996 — a period including approximately 2174 school days — there had been only one other day on which transportation was not furnished to St. Edward School students. Accordingly, this case does not come within the exception to the mootness doctrine for issues of public importance that are capable of repetition but likely to evade review. Id., 370.2

Because the majority reaches the constitutional issues in this case, and because I find fault in its state constitutional analysis and its reliance on Snyder v. *792Newtown, 147 Conn. 374, 390-91, 161 A.2d 770 (1960), appeal dismissed, 365 U.S. 299, 81 S. Ct. 692, 5 L. Ed. 2d 688 (1961), I am compelled to comment on these issues. This court has come a long way since 1960 when Snyder was decided in recognizing that our state constitution has independent vitality and that it requires an independent analysis of several factors to determine the contours of its provisions. In State v. Geisler, 222 Conn. 672, 684-86, 610 A.2d 1225 (1992), we enumerated the following six factors to consider when construing the contours of our state constitution: (1) the textual approach; (2) holdings and dicta of this court, and the Appellate Court; (3) federal precedent; (4) the sibling approach; (5) the historical approach; and (6) economic/sociologica! considerations.

The majority opinion incorrectly relies on Snyder v. Newtown, supra, 147 Conn. 374, which, not only provides an incomplete independent analysis of article seventh of our state constitution, but also, interprets a superseded state constitution. The Snyder decision, which held that payment by a town for transportation of schoolchildren to a religious school did not constitute support of the school within the proscription of article seventh of the constitution of the state of Connecticut, was based on the 1955 version of article seventh.3 This *793state subsequently adopted the 1965 constitution, which includes a revised article seventh on establishment of religion.

Article seventh of the Connecticut constitution of 1965 provides: “It being the right of all men to worship the Supreme Being, the Great Creator and Preserver of the Universe, and to render that worship in a mode consistent with the dictates of their consciences, no person shall by law be compelled to join or support, nor be classed or associated with, any congregation, church or religious association. No preference shall be given by law to any religious society or denomination in the state. Each shall have and enjoy the same and equal powers, rights and privileges, and may support and maintain the ministers or teachers of its society or denomination, and may build and repair houses for public worship.” (Emphasis added.) There are significant differences between the 1955 and 1965 constitutions. For example, the 1965 constitution not only removes all references to Christian denominations, but, more importantly, guarantees that “[n]o preference shall be given by law to any religious society or denomination in the state.” This court concluded in Griswold Inn, Inc. v. State, 183 Conn. 552, 559 n.2, 441 A.2d 116 (1981), that the 1955 constitutional provision did not show as great an “awareness of religious freedom, and of the separation of church and state” as the 1965 version of article seventh.

Furthermore, Snyder ignores the textual differences between article seventh of our state constitution and the first amendment to the United States constitution. This court correctly pointed out in Griswold Inn, Inc. v. State, supra, 183 Conn. 559 n.3, that even though the first amendment to the United States constitution and *794article seventh of our state constitution serve a similar purpose, “[t]he state provision is . . . more comprehensive than the federal provision.” The court further noted that “[a]rticle seventh’s language even more than the federal provision condemns any law which gives ‘preference’ to one religious society and assures that no person ‘shall ... be compelled to . . . support . . . or be associated with’ any religious group but can ‘worship in a mode consistent with the dictates of their consciences.’ ” Id. Therefore, if Snyder was relevant, it ignored the fact that the language used by the framers of article seventh demonstrates their intent to more positively enunciate this separation between church and state than did the framers of the first amendment prohibition of laws “respecting an establishment of religion . . . .” U.S. Const., amend. I.

Finally, I disagree with the majority’s conclusion that because the primary purpose of § 10-281 is to protect the welfare and safety of children who must use the highways in attending school in accordance with the mandatory schooling law, that necessarily makes it a permissible form of support under the provision of article seventh. Indeed, Justice Samuel Mellitz cogently pointed out in dissent in Snyder with respect to the 1955 constitution, “[t]he law leaves to every man the right to entertain such religious views as appeal to his individual conscience and to provide for the religious instruction and training of his own children to the extent and in the manner he deems essential or desirable. When he chooses to seek for them educational facilities which combine secular and religious instruction, he is faced with the necessity of assuming the financial burden which that choice entails.” Snyder v. Newtown, supra, 147 Conn. 396. Thus, “all compulsory support is proscribed [by article seventh], and the only questions to be resolved are whether the expenditure involved *795constitutes ‘support’ and, if it does, whether the beneficiary of the support is a ‘congregation, church or religious association’ within the meaning of article seventh . . . .” Id., 395 (Mellitz, J., dissenting).

Justice Mellitz concluded in his dissent that General Statutes (Rev. to 1958) § 10-281 was unconstitutional because “where transportation is required to enable a child to attend [religious] school, it is an integral part of the operation of the school, and that payment of the expense of transportation is an expenditure in support of the [religious] school.” (Emphasis added.) Id.; see Matthews v. Quinton, 362 P.2d 932, 940-41 (Alaska 1961) (transportation of children to nonpublic schools on public school buses is direct benefit to school as well as to child); Visser v. Nooksack Valley School District No. 506, 33 Wash. 2d 699, 708, 207 P.2d 198 (1949) (“[transportation to . . . school differs, in both degree and nature, from those indirect, incipient, and incidental benefits which accrue to schools, as buildings, or to its pupils, as citizens under normal health, welfare, and safety laws of the state”); State v. Nusbaum, 17 Wis. 2d 148, 157, 115 N.W.2d 761 (1962)4 (financial benefit that parochial schools receive from state provided transportation is distinguishable from provision of fire, police, water and sewer services, “whereby no classification is made as to religious” status). In this case, it cannot be denied that public transportation for all nonpublic schools is a benefit to St. Edward School as well as its students, and that such a benefit “supports” the school and its religious mission.

As can be seen from this preceding discussion, the issue of the constitutionality of the provision of transportation for students who attend religious schools is *796not quite as simplistic as the majority makes it out to be. The complex nature of the constitutional issue counsels us to address it in a case that presents a live controversy and not in a case in which the issues are moot.

The implication of the majority’s opinion not only raises serious constitutional questions, but could be financially devastating for the town of Stafford and all the other public school districts in Connecticut. As I interpret the majority opinion, the school board is required to provide transportation to the students attending nonpublic schools on any day, regardless of whether the public schools are in session, provided that it does not exceed the 180 days mandated by law, that it is not unreasonable in kind and duration,5 and that it does not cost more than “double the local per pupil expenditure for public school transportation . . . .”6 General Statutes § 10-281. It is inappropriate to decide such a broad based issue on the record of a case such as this.

I would, therefore, dismiss the case as being moot.

Indeed, at no time during which the litigation has been pending — either before the school board, during the administrative hearing before the defendant state board of education, or during the appeal before this court — has this been a live controversy. The complaining party did not file the request for a hearing until September 30, 1994, six and one-half months after the school board had denied the transportation request, five and one-half months after the days for which transportation had been requested, and three months after the close of the academic year.

The parents, through this action, sought declaratory relief that the defendant state board of education had no jurisdiction to determine under General Statutes § 10-186. The state board’s authority under § 10-186 was limited to providing relief for the denial of transportation on the three specific days in April, 1994. Since the three days on which transportation was not provided had long since passed, the state board could not order the school board to render transportation services for those days.

Article seventh, § X, of the Connecticut constitution of X955 provided: “It being the duly of all men to worship the Supreme Being, the Great Creator and Preserver of the Universe, and their right to render that worship, in the mode most consistent with the dictates of their consciences; no person shall by law be compelled to join or support, nor be classed with, or associated to, any congregation, church or religious association. But every person now belonging to such congregation, church, or religious association shall remain a member thereof until he shall have separated himself therefrom, in the manner hereinafter provided. And each and every society or denomination of Christians in this state, shall have and enjoy the same and equal powers, rights and privileges; and shall have power and authority to support and maintain the ministers or teachers of their respective denominations, and to build and repair houses for public worship, by a tax on the members of any such society only, to be laid by a major vote *793of the legal voters assembled at any society meeting, warned and held according to law, or in any other manner.”

Nusbaum was subsequently overruled by a 1967 constitutional amendment permitting state funded transportation of private schoolchildren. See Cartwright v. Sharpe, 40 Wis. 2d 494, 501, 162 N.W.2d 5 (1969).

See footnote 5 of the majority opinion.

General Statutes § 10-281 provides in relevant part: “In no case shall a municipality or school district be required to expend for transportation to any nonpublic school, in any one school year, a per pupil transportation expenditure greater than an amount double the local per pupil expenditure for public school transportation during the last completed school year. . . . .”