279 Conn. 447

ELIZABETH KERRIGAN ET AL. v. COMMISSIONER OF PUBLIC HEALTH ET AL.

(SC 17563)

Sullivan, C. X, and Borden, Norcott, Palmer and Zarella, Js.*

Argued February 9

officially released August 15, 2006

*448Vincent P. McCarthy, with whom was Kristina J. Wenberg, for the appellant (proposed intervenor Family Institute of Connecticut).

Kenneth J. Bartschi, with whom were Bennett Klein, pro hac vice, and, on the brief, Annette Lamoreaux, Lori Rifkin, Karen L. Dowd, Maureen Murphy and Mary L. Bonauto, pro hac vice, for the appellees (plaintiffs).

Gregory T. D’Auria, associate attorney general, with whom were Robert W. Clark, assistant attorney general, and, on the brief, Richard Blumenthal, attorney general, and Susan Quinn Cobb, assistant attorney general, for the appellees (defendants).

Opinion

NORCOTT, J.

In this appeal, we consider whether the trial court properly denied the motion of the proposed intervenor, the Family Institute of Connecticut (institute), to intervene as a party defendant in this declaratory judgment action brought by the plaintiffs, seven same sex couples,1 against, among others, the defendant *449department of public health (department),2 challenging the constitutionality of Connecticut’s marriage laws insofar as they preclude the issuance of marriage licenses to same sex couples. On appeal,3 *5the institute, a public policy organization that supports heterosexual *450marriage as the ideal environment for raising children, claims that the trial court should have permitted it to intervene in this litigation as a matter of right, or in the alternative, permissively. We affirm the judgment of the trial court.

The record reveals the following undisputed facts and procedural history. In August, 2004, the seven plaintiff couples went separately to the office of the defendant Dorothy Bean, the deputy and acting town clerk and registrar for vital statistics of the town of Madison, and requested applications for marriage licenses. An employee acting on Bean’s behalf stated that, in accordance with an opinion authored by the attorney general dated May 17, 2004, she could not issue them marriage licenses. Thereafter, the plaintiffs commenced this action, claiming that, to the extent that any statute, regulation or common-law rule precludes otherwise qualified individuals from marrying because they wish to marry someone of the same sex, or are gay or lesbian couples, such statutes, regulations and common-law rules violated numerous provisions of the Connecticut constitution. The plaintiffs requested a declaratory judgment to this effect, as well as injunctions ordering: (1) Bean to issue marriage licenses to the plaintiffs upon proper completion of the applications; and (2) the department “to take any and all steps necessary to effectuate the [c]ourt’s declaration, including register*451ing such marriages upon proper return. ” The defendants answered the complaint with general denials.

Shortly after the plaintiffs filed the complaint, the institute moved, pursuant to General Statutes § 52-107,4 and Practice Book § 9-18,5 to intervene in the case as a matter of right, or in the alternative, permissively. According to the motion papers, which include an affidavit from the institute’s executive director, Brian Brown, the institute is a nonpartisan, nonprofit, tax exempt “public policy organization whose purpose is to help make Connecticut as family-friendly as possible. . . . [The institute] places a strong emphasis on education, and networks with pro-family groups around . . . Connecticut and throughout the nation.” Brown alleged that the institute “foresees a restored consensus that the family consists of people related by marriage, birth or adoption, and which recognizes the vital role of both mother and father in nurturing and supporting children . . . ,”6 The institute sought to intervene in order to *452“strengthen traditional families and uphold the ideal of a father, mother and child family which has been the ideal family for thousands of years.” It also sought “to assist the [c]ourt in its deliberations of important issues through the experience and expertise of [the institute’s] members in the area of traditional marriage and raising children in a traditional marriage.”

The institute subsequently supplemented its motion with additional papers arguing that the defendants’ answering of the complaint without first filing a motion to strike demonstrated their “unwillingness to aggressively defend the marriage statutes,” because “truly adversarial defendants would have filed motions to strike the complaint where, as here, there is no existing Connecticut law supportive of the plaintiffs’ constitutional claims. The failure of the [s]tate defendants to file motions to strike demonstrates that they do not adequately represent the interests of [the institute].” The supplemental papers further noted that, the “failure (or refusal) of the [s]tate defendants to test the legal sufficiency of the complaint by moving to strike raises an inference that they are sympathetic to [the] [plaintiffs’ desire for same-sex marriage, and thus ‘friendly’ to [the] [p]laintiffs.7 If this is true, this case is not truly adversarial among the existing parties, a vital component of our system of jurisprudence.”

The trial corut denied the institute’s motion to intervene in a comprehensive memorandum of decision. With respect to intervention as a matter of right, the trial court concluded that, “[w]hatever the outcome of this litigation, it is manifest that no legal interest of [the institute] will be affected thereby. Moreover, [the institute] has failed to demonstrate that it has any interest at stake that is different from any other individual *453or entity that has a strongly held view about the subject matter of this litigation. . . . [The institute] has no interest to assert that is any different from any member of the public at large who may have an opinion about important political and social issues of the day. The fact that [the institute] might be more articulate, vocal, passionate or organized in expressing its view does not confer upon it a legal interest of any kind.”

The trial court also denied the institute’s motion for permissive intervention, concluding that, “[without some interest different from that of any number of individuals or organizations with an opinion on the subject of same sex marriage, the grant of intervention to [the institute] would open the doors to intervention by any number of other proposed intervenors with a similar or opposing view, creating a vast and unwieldy lawsuit that would ill serve the real interests of the plaintiffs and defendants already in the case.”8 The trial court noted, however, that the submission of amicus curiae briefs by public policy organizations at an “appropriate time” might be “helpful to the court in determining one or more of the ultimate issues to be decided.” The trial court rendered judgment accordingly, and this appeal followed.9

*454Before turning to the institute’s specific claims on appeal, we note the applicable standard of review. The institute and the defendants, citing the Appellate Court decision in Rosado v. Bridgeport Roman Catholic Diocesan Corp., 60 Conn. App. 134, 142, 758 A.2d 916 (2000), contend that the trial court’s denial of a motion to intervene as a matter of right is subject to plenary review. The plaintiffs claim, however, that Rosado is inconsistent with precedent from this court, specifically Washington Trust Co. v. Smith, 241 Conn. 734, 747-48, 699 A.2d 73 (1997), wherein this court applied the abuse of discretion standard of review to the trial court’s determination that two parties claiming a right to redemption could not intervene as of right in a foreclosure action. Although all parties’ case citations are accurate, we now conclude that the analytical distinction between the two different types of intervention, specifically, permissively and as of right, requires us to review de novo the trial court’s determination as to the nature and extent of the interests at issue in a motion for intervention as a matter of right.10 See Horton v. Meskill, *455187 Conn. 187, 191-92, 445 A.2d 579 (1982) (“The distinction between intervention of right and permissive intervention, such as is found in Rule 24 of the Federal Rules of Civil Procedure, has not been clearly made in Connecticut practice. . . . Most of our cases discuss the admission of new parties as coming within the ‘broad discretion’ of the trial court. . . . But there are also cases which make clear that intervention of right exists in Connecticut practice.” [Citations omitted.]). In addition to accommodating the “direct and substantial interests” implicated by a motion to intervene as a matter of right, the less restrictive de novo standard of review is more consistent with the nature of the relevant inquiry taken to evaluate such a claim, which is confined to a review of the relevant pleadings, with all allegations therein taken as true. Washington Trust Co. v. Smith, supra, 746. Thus, to the extent that Washington Trust Co. stands for the proposition that, other than a matter of timeliness, a trial court’s decision on the merits of a party’s motion to intervene as a matter of right, and specifically the nature and extent of the rights at issue, is subject to review for abuse of discretion, it is overruled.11

I

We now turn to the institute’s claim that the trial court improperly denied its motion to intervene as a matter of right. Specifically, the institute contends that the trial court improperly concluded that: (1) it does not have a sufficiently significant interest in the outcome of the litigation, and that denial of the motion to intervene would not impair the institute’s ability to protect its *456interests; and (2) the present defendants, who are represented by the attorney general pursuant to General Statutes § 3-125,12 will adequately represent the institute’s interests. In response, both the plaintiffs and the defendants contend that the trial court properly denied the institute’s motion to intervene as a matter of right because: (!) the institute’s interest is not sufficiently direct or personal, but rather is one of generalized interest in public policy; and (2) the institute has failed to defeat the presumption that the attorney general is adequately conducting the defense of the marriage statutes. We agree with the plaintiffs and the defendants.

The four element, conjunctive inquiry governing the decision on a motion for intervention as a matter of right is aptly summarized in Rosado v. Bridgeport Roman Catholic Diocesan Corp., supra, 60 Conn. App. 134. Specifically, “[t]he motion to intervene must be timely, the movant must have a direct and substantial interest in the subject matter of the litigation, the movant’s interest must be impaired by disposition of the litigation without the movant’s involvement and the movant’s interest must not be represented adequately by any *457party to the litigation.” Id., 140; accord Franco v. East Shore Development, Inc., 271 Conn. 623, 631, 858 A.2d 703 (2004); Washington Trust Co. v. Smith, supra, 241 Conn. 745-48; Horton v. Meskill, supra, 187 Conn. 191-96.

“For puiposes of judging the satisfaction of [the] conditions [for intervention] we look to the pleadings, that is, to the motion for leave to intervene and to the proposed complaint or defense in intervention, and ... we accept the allegations in those pleadings as true. The question on a petition to intervene is whether a well-pleaded defense or claim is asserted. Its merits are not to be determined. The defense or claim is assumed to be true on motion to intervene, at least in the absence of sham, frivolity, and other similar objections.” (Internal quotation marks omitted.) Washington Trust Co. v. Smith, supra, 241 Conn. 746. Thus, neither testimony nor other evidence is required to justify intervention, and “[a] proposed intervenor must allege sufficient facts, through the submitted motion and pleadings, if any, in order to make a showing of his or her right to intervene. The inquiry is whether the claims contained in the motion, if true, establish that the proposed intervenor has a direct and immediate interest that will be affected by the judgment.” Id., 747.

It is undisputed that the institute’s motion to intervene satisfies the first element of timeliness. Accordingly, we turn to the second element, namely, whether the trial court properly concluded that the institute lacked a sufficient interest in this litigation to be entitled to intervene as a matter of right. “An applicant for intervention has a right to intervene . . . where the applicant’s interest is of such a direct and immediate character that the applicant will either gain or lose by the direct legal operation and effect of the judgment.” (Internal quotation marks omitted.) Horton v. Meskill, supra, 187 Conn. 195. “[A] person or entity does not have *458a sufficient interest to qualify for the right to intervene merely because an impending judgment will have some effect on him, her, or it. The judgment to be rendered must affect the proposed intervenor’s direct or personal rights, not those of another.” Id.

Having reviewed the facts set forth in the motion papers, we conclude that the institute has not identified an interest of “direct and immediate character” that will cause it to gain or lose anything as a result of the judgment in this case. Indeed, the institute has not alleged, much less demonstrated, that a judgment in this case will affect any specific right or interest possessed by it or its members. See Washington Trust Co. v. Smith, supra, 241 Conn. 747-48 (concluding that parties claiming right to redemption, one through possession of leasehold interest and other through having purchased equity of redemption, should have been permitted to intervene as defendants in foreclosure action); In re Baby Girl B., 224 Conn. 263, 275-76, 618 A.2d 1 (1992) (“Here, the only legal interests at stake in the termination proceeding were the mother’s parental rights. Although the preadoptive parents may have been affected by the court’s judgment in the termination proceeding, they had no legal interest at stake that would entitle them to intervene.”); see also Grutter v. Bol-linger, 188 F.3d 394, 399-400 (6th Cir. 1999) (minority students should have been permitted to intervene in action challenging state university’s admissions policies because they had “enunciated a specific interest in the subject matter of this case, namely their interest in gaining admission to the [ujniversity,” and “[tjhere is little room for doubt that access to the [ujniversity for African-American and Latino/a students will be impaired to some extent and that a substantial decline in the enrollment of these students may well result if the [ujniversity is precluded from considering race as a factor in admissions”); San Francisco v. State, 128 Cal. App. 4th 1030, 1038-39, 27 Cal. Rptr. 3d 722 *459(organization created to defend initiative leading to legislation precluding same sex marriage lacked interest sufficient to justify permissive intervention when it did “not claim a ruling about the constitutionality of denying marriage licenses to same-sex couples will impair or invalidate the existing marriages of its members, or affect the rights of its members to marry persons of their choice in the future”), review denied, 2005 Cal. LEXIS 8002 (July 20, 2005).

A comparison of the Appellate Court decisions in State Board of Education v. Waterbury, 21 Conn. App. 67, 571 A.2d 148 (1990), and Polymer Resources, Ltd. v. Keeney, 32 Conn. App. 340, 629 A.2d 447 (1993), is illustrative on this issue. In State Board of Education v. Waterbury, supra, 73, the court concluded that a parent-teacher organization and individual parents had sufficient interest to intervene in a mandamus action compelling a city to implement a school desegregation plan because, “what can be more direct and personal than the interest of the parent of a school child in the subject matter of this mandamus action — namely, compelling the implementation of the proposed plan for a desegregated school in the Maloney School district?” By contrast, in Polymer Resources, Ltd. v. Keeney, supra, 351, the Appellate Court concluded that a neighborhood environmental organization could not intervene as a matter of right in a civil rights action brought by a local manufacturing plant against the department of environmental protection because, “[although the resolution of [the manufacturer’s] civil rights claim might theoretically have an effect on [the environmental group, its] interest in the impending judgment was not sufficiently direct or personal to require intervention . . . .” (Emphasis added.) Id., 349-51.

The institute’s reliance on State Board of Education is misplaced because its interest in the present case is *460not nearly as direct and personal as that of a parent seeking to ensure the proper implementation of a desegregation plan at his or her child’s school. Rather, the only interest that the institute has established in the present case is that of a generalized public policy organization far more akin to the neighborhood environmental organization in Polymer Resources, Ltd. Put differently, all the institute has established in this case is its strong and capable commitment to championing a particular cause,13 which the trial court properly concluded was insufficient to require its intervention as a matter of right.14

*461II

In the alternative, the institute claims that the trial court abused its discretion by not permitting it to intervene permissively. Specifically, the institute appears to argue that, with respect to its permissive intervention claim, the trial court engaged in an improper analysis of the “ ‘delay’ ” that might be caused by its intervention. We, however, read the trial court’s decision as considering “ ‘delay in the proceedings or other prejudice to the existing parties’ ” as only a single factor in its analysis of the permissive intervention claim, rather than as an entirely separate ground for denying the motion to intervene, and will analyze the institute’s claim accordingly.

A trial court exercising its discretion in determining whether to grant a motion for permissive intervention balances “several factors [including]: the timeliness of the intervention, the proposed intervenor’s interest in the controversy, the adequacy of representation of such interests by other parties, the delay in the proceedings or other prejudice to the existing parties the intervention may cause, and the necessity for or value of the intervention in resolving the controversy [before the court]. ... [A] ruling on a motion for permissive intervention would be erroneous only in the rare case [in which] such factors weigh so heavily against the ruling that it would amount to an abuse of the trial court’s discretion.” (Citations omitted; internal quotation marks omitted.) Rosado v. Bridgeport Roman Catholic Diocesan Corp., 276 Conn. 168, 226, 884 A.2d 981 (2005), quoting Horton v. Meskill, supra, 187 Conn. 197; see also AT & T Corp. v. Sprint Corp., 407 F.3d 560, 562 (2d Cir. 2005) (“[r]eversal of a district court’s denial of permissive intervention is a very rare bird indeed, so *462seldom seen as to be considered unique” [internal quotation marks omitted]).

Even if we were to assume, arguendo, that the institute has an interest sufficient to justify permissive intervention, we conclude that the trial court nevertheless did not abuse its discretion by denying the motion for permissive intervention. Reviewing the other factors, the trial court reasonably could have determined that the institute’s interest in defending the constitutionality of the marriage laws would be adequately represented by the attorney general, whose defense of state statutes is “presumed” to be adequate. Horton v. Meskill, supra, 187 Conn. 196 (“although an intervening municipality is not barred from defending the constitutionality of the financing system, such an interest could never justify intervention in a case such as the present one where the constitutionality of the statute is being defended directly by the state as represented by the attorney general”); see also, e.g., New Mexico Right to Choose/ NARAL v. Johnson, 126 N.M. 788, 796, 975 P.2d 841 (1998) (trial court improperly permitted individuals to intervene as taxpayers and to protect life of unborn in case attacking restriction of state funding for abortions because department of human services “is presumed to represent that interest adequately”), cert. denied sub nom. Klecan v. New Mexico Right to Choose/NARAL, 526 U.S. 1020, 119 S. Ct. 1256, 143 L. Ed. 2d 352 (1999). Indeed, the institute’s attack on the adequacy of the attorney general’s representation largely is confined to its assertion that his commitment to defending this case aggressively has been belied by his decision to answer the complaint, rather than test its legal sufficiency immediately by moving to strike. This is, however, merely a strategic disagreement, which has, in any event, been rendered moot by the fact that the defendants filed a motion for summary judgment in the trial court. The institute has, therefore, failed to demonstrate *463inadequate representation, because “[i]f disagreement with an actual party over trial strategy, including over whether to challenge or appeal a court order, were sufficient basis for a proposed intervenor to claim that its interests were not adequately represented, the requirement would be rendered meaningless.”15 United States v. Board of Education, 902 F.2d 213, 218 (2d Cir. 1990).

Moreover, with respect to the “ ‘necessity for or value of the intervention in terms of resolving the controversy [before the court]”; Rosado v. Bridgeport Roman Catholic Diocesan Corp., supra, 276 Conn. 226; the trial court recognized the import of the institute’s expertise in this area, including its proffered scientific studies with respect to children who lack mother or father figures, by permitting it to participate as an amicus curiae.16 *464Indeed, our review of the record demonstrates that the institute has filed an extensive amicus brief that contains ample references to those scientific studies.17 The trial court properly balanced the parties’ interest in the expeditious resolution of this action with its desire to avail itself of the institute’s proffered expertise as to the merits of the controversy before the court, and did not, therefore, abuse its broad discretion by denying the institute’s motion for permissive intervention.

The judgment is affirmed.

In this opinion the other justices concurred.

Kerrigan v. Commissioner of Public Health
279 Conn. 447

Case Details

Name
Kerrigan v. Commissioner of Public Health
Decision Date
Aug 15, 2006
Citations

279 Conn. 447

Jurisdiction
Connecticut

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