In re Nesbitt

5 A.3d 518

124 Conn.App. 400

In re Addie May NESBITT.

No. 30221.

Appellate Court of Connecticut.

Argued May 27, 2010.

Decided Oct. 12, 2010.

Rachel M. Baird, Hartford, for the respondent (appellant).

Terrence M. O'Neill, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the petitioner (appellee).

DiPENTIMA, C.J., and HARPER and BORDEN, Js.

DiPENTIMA, C.J.

The respondent, Addie May Nesbitt, appeals from the judgment of the trial court denying her motion to dismiss a warrant issued pursuant to General Statutes § 29-38c and further ordering that the respondent's firearms be held by the state for a period of up to one year. On appeal, the respondent argues that (1) the risk warrant and its execution were so defective and contrary to the legislative intent and the requirements of § 29-38c that the cause of action should have been dismissed, and (2) the court improperly placed the burden of proof on her to prove that she was not at imminent risk of personal injury to herself or to others. We affirm the judgment of the trial court.

The following facts are relevant to the respondent's appeal. On May 1, 2008, the respondent and her husband, Robert Nesbitt (Nesbitt), received a copy of a letter dated April 29, 2008, from Robert F. Milano, chief of police of the Torrington police department, to Ryan J. Bingham, mayor of Torrington. According to the letter, the respondent had complained to the Torrington police department several years earlierthat she had given birth to two children but that the birth of only one child was recorded and the other child was stillborn. The letter indicated that although the policedepartment thoroughly investigated the initial complaint, it became clear during that investigation and every subsequent review that there was no evidence to support the claim of a second birth. The letter further indicated that the office of the state's attorney and the state medical examiner's office concurred with that finding and that, despite the respondent's insistence to the contrary, the state police would not be pursuing the matter.

Upon receipt of this letter, and apparently under the mistaken belief that by this letter the state police were going to open the investigation, the respondent and Nesbitt went to the state police at Troop L in Litchfield to discuss the matter. Upon arrival, they met with Sergeant Jeffrey Covello, ¹ who informed them that the state police did not intend to pursue the matter any further. By her own admission, the respondent then had a "meltdown." According to Covello, after he explained the meaning of the letter to the respondent, she pointed to a bruise on her left arm and indicated that during the prior week, her husband had wrestled a gun out of her hand because she was going to kill herself. The respondent's husband acknowledged to Covello that this was an accurate statement. The respondent told Covello that if the state police were not going to take the case, she had no reason to live. She then ran out the door of the barracks. Believing that the respondent was at risk of harming herself, Covello arranged for an ambulance to be called and for the respondent to be committed to Charlotte Hungerford Hospital in Torrington on an emergency basis.

Thomas J. Grigerik, a state police trooper, accompanied the respondent to the hospital in the ambulance. While at the hospital, Grigerik informed Nesbitt thatthe respondent's firearms had to be surrendered to the state police. Nesbitt indicated that he would comply with this directive. When Nesbitt informed Grigerik that he had some weapons in their residence as well, Grigerik informed him that those weapons also had to be removed. Nesbitt, Grigerik and another trooper then went to the residence where Nesbitt gave the troopers three weapons that were registered to the respondent. These weapons were brought to the evidence room at the Litchfield barracks. The following day, the evidence officer learned that another firearm registered to the respondent had been surrendered to Autumn Gun Works, Inc., in Goshen by Nesbitt. Grigerik then went to Autumn Gun Works, Inc., where he took possession of that firearm and brought it to the evidence room where it was secured.

On May 6, 2008, Grigerik prepared a search and seizure warrant, pursuant to § 29-38c, for the four weapons that had been seized from the respondent and that were in the evidence room at Troop L.² The warrant was signed on May 8, and was executed on May 14, 2008. The respondent then filed a motion to dismiss on the basis of lack of subject matter jurisdiction and insufficiency of process and service of process. Following a hearing, the court denied the motion to dismiss. The court further found, with respect to thewarrant, that the state had sustained its burden of proving by clear and convincing evidence that the respondent posed an imminent risk of personal injury to herself; it therefore ordered that the firearms continue to be held for a period of up to one year, until July 23, 2009. The respondent then filed this appeal, claiming that the courtshould have dismissed the warrant and that the court improperly placed the burden on her to prove that she was not at imminent risk of personal injury to herself or to other individuals. While this appeal was pending, the court's order expired, and the firearms were returned to the respondent.

I

Before addressing the merits of the respondent's appeal, we first determine whether the case has been rendered moot due to the expiration of the court's order and the return of the firearms to the respondent.³ The state argues that this appeal should be dismissed, as there is no longer any practical relief that can be afforded to the respondent. The respondent counters that this appeal is reviewable under either the collateral consequences doctrine or the capable of repetition, yet evading review doctrine. We agree with the respondent that this appeal satisfies the requirements of the collateral consequences exception to the mootness doctrine. ⁴

"[A]n actual controversy must exist not only at the time the appeal is taken, but also throughout the pendency of the appeal.... When, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has becomemoot.... However, under this court's long-standing mootness jurisprudence ... despite developments during the pendency of an appeal that would otherwise render a claim moot, the court may retain jurisdiction when a litigant shows that there is a reasonable possibility that prejudicial collateral consequences will occur....

"[T]o invoke successfully the collateral consequences doctrine, the litigant must show that there is a reasonable possibility that prejudicial collateral consequences will occur. Accordingly, the litigant must establish these consequences by more than mere conjecture, but need not demonstrate that these consequences are more probable than not. This standard provides the necessary limitations on justiciability underlying the mootness doctrine itself. Where there is no direct practical relief available from the reversal of the judgment ... the collateral consequences doctrine acts as a surrogate, calling for a determination whether a decision in the case can afford the litigant some practical relief in the future." (Internal quotation marks omitted.) Putman v. Kennedy, 279 Conn. 162, 169, 900 A.2d 1256 (2006).

The state argues that there is no restraint on the respondent's possession of the pistols and that any suggestion as to any future consequences flowing from the respondent's conduct is purely speculative in nature. The respondent counters that collateral consequences of the trial court's order exist because the notice reinstating her pistol permit specifically indicated that further incidents that call into question her suitability to hold a permit could lead to the permanent revocation of her pistol permit. She further argues that collateral consequences exist due to the notification to the department of mental health and addiction services of the court's order. We agree with the respondent.

General Statutes § 29-28(b) ⁵ provides, in part, that upon application, the issuing authority may issue a temporary state permit to carry a pistol or revolver within the state, provided that "such person is a suitable person to receive such permit...." A state permit is subject to renewal every five years. General Statutes § 29-30(c). The letter from the department of public safety reinstating the respondent's pistol permit specifically notified the respondent that "[f]urther incidents that call into question your suitability to hold a permit willbe investigated and may lead to permanent revocation of the permit." We agree with the respondent that by this letter, the department of public safety notified the respondent that a collateral consequence of the revocation is a state police record that potentially will affect the respondent negatively if and when the question of suitability arises in the future. This potential consequence was explicitly stated in the letter reinstating the respondent's pistol permit; it is, therefore, based on more than mere conjecture. Accordingly, we conclude that the respondent has satisfied the requirements of the collateral consequences exception tothe mootness doctrine.⁶ This court, therefore, has subject matter jurisdiction over the present appeal.

II

We turn now to the merits of the respondent's appeal. The respondent first argues that the court improperly denied her motion to dismiss for lack of subject matter jurisdiction. Specifically, the respondent argues that the risk warrant failed to allege the facts mandated by § 29-38c (a) for the issuance of the warrant. Although the respondent argues that the court lacked subject matter jurisdiction, she is, in fact, challenging the validity of the underlying...