City of Groton v. Commission on Human Rights & Opportunities

Bogdanski, J.

(concurring and dissenting). I cannot agree that the death of Richardson deprived the commission of jurisdiction to hear the complaint. The majority opinion concludes that “[s]ince the commission failed to amend the complaint to substitute itself as complainant seeking relief in the interest of the general public, it was error for the tribunal to deny the plaintiffs’ timely motions to dismiss.” That statement, however, erroneously assumes that Richardson was a necessary party to the commission proceedings. Pursuant to §.§. 31-127 and 53-36 of the General Statutes, any person claiming to be aggrieved by an alleged unfair employment practice as defined in § 31-126 of the General Statutes or claiming to be deprived of constitutional rights as defined in § 53-34 of the General Statutes may file a written complaint, *110under oath, with the commission. Such person, having filed a complaint, then becomes no more than an interested party and potential witness in subsequent proceedings. It is the commission which is required to investigate the complaint and to “endeavor to eliminate the unfair employment practice [or deprivation of constitutional rights] complained of by conference, conciliation and persuasion.” General Statutes § 31-127. Failing that, the matter proceeds to a hearing before a hearing tribunal. Under' § 31-127, the only party required to be served and to appear is “the person . . . [or] employer . . . named in such complaint, . . . referred to as the respondent .... The case in support of the complaint shall be' presented at the hearing by the attorney general, who shall be counsel for the commission . . . .” (Emphasis added.)

The original complainant then is not a necessary party under the procedure set forth in § 31-127. The proceeding is one in which the commission on human rights and opportunities prosecutes the complaint before a hearing tribunal appointed by the chairman • of the commission, which procedure is similar to that established for numerous other “watchdog” administrative agencies.1 Moreover, only the commission may petition the court for the enforcement of any cease and desist order issued by the tribunal. General Statutes §31-128 (a). It *111is true that either the respondent or the original complainant may now appeal from the action of the hearing tribunal. General Statutes §31-128 (d). That right of appeal, however, was not originally extended to the complainant; see Sup. 1947 § 1866i; and it was not until 1963 that the complainant was given the right to appeal. 1963 Public Acts No. 472. Nevertheless, the complainant’s right of appeal is not inconsistent with the framework of § 31-127 which designates the commission and the respondent as the only necessary parties for purposes of the hearing before the tribunal, and which, by implication, relegates the complainant to the status of an interested party.

The reliance by the majority on Veeder-Root Co. v. Commission on Human Rights & Opportunities, 165 Conn. 318, 334 A.2d 443, is misplaced. The issue there was whether the relief granted was within the wording of the complaint, i.e., whether the respondent had notice of the scope of the action. Id., 329. That case had nothing to do with the question of standing, although it did indicate by way of dicta that the commission could have amended the complaint of Hilda Moe to include an attack on department-wide discrimination. Id., 328. If the commission can amend the original complainant’s complaint, it then follows that the commission is the real adversary to the respondent in the hearing before the tribunal. At any rate, the commission did amend the complaint in the present case. As noted in the concurring opinion, the amended complaint alleged that Pioneer was using a “membership” procedure which was a “vehicle of discrimination” and “an improper standard to be used in the conduct of a public agency.” I agree with the concurring opinion that the amended complaint *112enlarged the issues to he decided before the tribunal far beyond the question of discrimination against Richardson alone, and that Richardson’s death did not ipso facto deprive the tribunal of jurisdiction to proceed with the hearing.

I also agree with the concurring opinion that the commission failed to allege an unfair employment practice within the meaning of § 31-126 (a) of the General Statutes. Nowhere in the amended complaint is it alleged that either Groton is an employer or that an application for “membership” in Pioneer is, in effect, an application for employment with Groton. Since that failure to allege facts sufficient to bring the proceeding within the requirements of § 31-126 (a) was raised by the plaintiffs in their motions to dismiss filed with the tribunal, the defect was not waived and the tribunal should have dismissed that portion of the complaint that alleged a violation of § 31-126 (a).

The tribunal, however, properly proceeded with respect to the broader allegations of the complaint which claimed that the “membership” procedure used by Pioneer, an agent of Groton, was “a vehicle of discrimination” in violation of § 53-34 of the General Statutes. Under § 53-34, it is unlawful for any person to subject any other person to the deprivation of constitutional rights on account of alienage, color, race or sex. Section 53-36 provides that any person aggrieved by a violation of § 53-34 may file a complaint with the commission which then proceeds on such a complaint “in the same manner and with the same powers as provided in . . . the case of unfair employment practices.” Thus, the commission is the moving party in pressing the complaint to final disposition, and the survival-of-actions statute, § 52-599 of the General *113Statutes, does not apply upon the death of the original complainant, when the complaint has been amended to allege discriminatory practices that affect the public generally. The trial court properly noted that “[ a] 1 though the complainant’s right to personal relief did not survive, the public’s interest and right to relief would not be extinguished by the death of a complainant under a valid proceeding.” Under § 53-34, a criminal prosecution would not abate upon the death of a complaining witness, since a violation of that statute is a wrong against the people of this state. The scope of the harm to be prevented is not lessened merely because the commission becomes the public agency designated to remedy the situation by means of conciliation, persuasion and administrative hearing. That only a person who is aggrieved by a violation of § 53-34 may file a complaint with the commission should not be construed to mean that the commission may only seek relief for that individual. The harm, a deprivation of constitutional rights, is one which society has a stake in preventing and the relief sought by the commission is for the benefit of the public, not merely for the individual who files the complaint.

I would therefore conclude that Richardson’s death did not prevent the commission from going forward with the claim that the plaintiffs were violating § 53-34 of the General Statutes by maintaining “membership” requirements that set forth “a vehicle of discrimination.”

The issues actually raised on this appeal and briefed by the parties should be reached. As noted in the majority opinion, the trial court determined that the hearing tribunal was without jurisdiction to issue the cease and desist order against the plaintiffs. The court concluded that the complaint and *114amended complaint had not been filed with the commission within ninety days after the alleged act of discrimination as required by § 31-127 of the General Statutes, and that the complaint and amended complaint were defective in failing to make refer ence to the subsection of § 31-126 of the General Statutes as required by the regulations of the commission. The commission has assigned error in both of those conclusions.

It appears from the finding of the commission that Richardson applied for membership in Pioneer on October 11, 1967; that the application contained no inquiry about the applicant’s experience as a firefighter; that the application required the signature of a sponsor; that only a present member of Pioneer could act as a sponsor; that Richardson submitted the application without a sponsor’s signature; and that the application was accepted by the foreman of Pioneer. It was not until October 17, 1967, that Richardson was sent notice that his application was invalid because it lacked a sponsor’s signature. Whether Richardson’s complaint was filed with the commission on January 9, 1968, or on the following day, is of no consequence. The ninety-day filing limitation in § 31-127 of the General Statutes could not possibly start to run until actual notice of the rejection of the application was sent to Richardson. Otherwise, a respondent could wait out the ninety-day filing period, then notify the applicant of its decision, and claim that any complaint filed with the commission thereafter was not timely under § 31-127. Common sense as well as the case law dictate that no such loophole can exist in the procedure provided by the legislature for filing complaints with the commission. See International Brotherhood of Electrical Workers Local 35 v. *115Commission on Civil Rights, 140 Conn. 537, 102 A.2d 366. Thus, Richardson’s complaint against Pioneer was filed with the commission within ninety days of the alleged act of discrimination, which occurred on October 17, 1967, the date notice was sent to Richardson. The trial court erred in concluding that the act of discrimination occurred on October 11, 1967, and in calculating the ninety-day filing period from that date. It may well be that the subsequent amendment of the complaint on April 24, 1968, which added Groton as a party, was the commencement of a new proceeding against Groton which was beyond the ninety-day period of limitation. See, generally, 51 Am. Jur. 2d, Limitation of Actions, § 272. That defect, however, did not require dismissal of the proceeding against Pioneer.

The second ground on which the trial court based its decision to sustain the appeals was the failure of the complaint and the amended complaint to make reference to the subsection of § 31-126 of the General Statutes which the plaintiffs allegedly were violating. The commission argues that that omission did not render the complaint fatally defective for several reasons, not the least of which is the fact that the complaint also alleged that the plaintiffs had violated § 53-34 of the General Statutes. Any defect regarding the charge under § 31-126 could not affect the separate charge under § 53-34. The hearing tribunal concluded that Pioneer had violated § 53-34. The trial court therefore should have proceeded to hear the merits of the appeal with regard to that allegation.

I would find error in the sustaining of the Pioneer appeal, vacate the judgment and remand the case for consideration of the substantive issues raised in that appeal.

See, e.g., General Statutes (Rev. to 1975) §§ 14-4a, 14-64, 14-67c, 14-110 to 14-111b, and 14-114 of the General Statutes, regarding the motor vehicles commissioner; §§ 15-124, 19-513a, 19-514 and 22a-5, regarding the commissioner of environmental protection; §§ 16-8, 16-9, 16-12 and 16-13, regarding the public utilities commission; $§ 20-45 and 20-46, regarding the medical examining boards; §§ 20-320 and 20-321, regarding the real estate commission; § 30-8, regarding the liquor control commission; and § 38-62, regarding the insurance commissioner.