State v. Reddy, No. 33324.

135 Conn.App. 65

42 A.3d 406

STATE of Connecticut

v.Walter REDDY III.

No. 33324.

Appellate Court of Connecticut.

Argued Feb. 6, 2012.

Decided April 24, 2012.

Joseph P. Secola, Brookfield, for the appellant (respondent).

Kathryn Ward Bare, assistant state's attorney, with whom, on the brief, were David I. Cohen, state's attorney, and Suzanne M. Vieux, supervisory assistant state's attorney, for the appellee (state).

DiPENTIMA, C.J., and BEAR and BISHOP, Js.

DiPENTIMA, C.J.

The respondent, Walter Reddy III, appeals from the judgment of the trial court finding that he posed a risk of imminent personal injury to other individuals and ordering that his firearms be seized for a period of one year pursuant to General Statutes § 29–38c.¹ On appeal, both the respondent and the state are in accord that the judgment of the court should be reversed. We agree with the parties and, accordingly, reverse the judgment of the trial court.

The following facts and procedural history are relevant to our discussion. On February 8, 2011, officers from the Weston police department applied for a risk warrant pursuant to § 29–38c to seize weapons and firearms in the custody of the respondent. The risk warrant application indicated that on February 4, 2011, Rand McNeil reported a “suspicious incident” involving the respondent that had occurred approximately one week earlier. Specifically, McNeil informed members of the Weston police department that the respondent had “recently brandished a pistol grip shotgun and made several disturbing comments while holding the shotgun....” McNeil also stated that the respondent was “in financial distress” with a financial institution and had stated, “I would not want to be someone from the bank coming to my house.” (Internal quotation marks omitted.) McNeil also recounted the respondent's statement that he would be “ready for the cops next time they come.” ² (Internal quotation marks omitted.) The application for the risk warrant concluded: “That based on the facts and circumstances [the respondent] made recent threats of violence toward others including law enforcement officials and bank personnel by his statements, and displayed reckless use and brandishing of a firearm.”

On February 8, 2011, the court issued the risk warrant, which was executed on February 14, 2011. Police officers seized the following items from the respondent: a pistol grip shotgun, stock and case, a revolver, assorted ammunition, an ammunition can, a red wire described as a fuse and two nonfunctioning grenades. Pursuant to § 29–38c (d), the court held a hearing on February 25, 2011. At the outset, the self-represented respondent indicated that he wanted to be represented by counsel. He stated that he had spoken with several attorneys but had not yet retained counsel. The prosecutor indicated that the state had issued subpoenas and had civilian witnesses and members of the Weston police department present to testify.

The court stated that pursuant to § 29–38c (d),³ it was required to hold a hearing within fourteen days of the execution of the warrant. The prosecutor noted her agreement with the court's interpretation of the statute and requested that the hearing go forward. After further argument,the court proceeded with the hearing. After considering the testimony, the court found by clear and convincing evidence that the respondent posed a risk of imminent personal injury to other individuals. It ordered that the items seized by the police department be held for a period of one year. On March 17, 2011, the respondent filed a motion to open and set aside the findings and judgment and requested a new hearing with counsel. The court denied this motion on March 21, 2011. This appeal followed.

I

Before reaching the merits of the respondent's appeal, we must determine whether the case has been rendered moot due to the expiration of the court's order. We consider this issue first because it implicates our subject matter jurisdiction. See State v. McElveen, 117 Conn.App. 486, 489, 979 A.2d 604 (2009), appeal dismissed, 302 Conn. 532, 29 A.3d 897 (2011). Guided by this court's recent decision in In re Addie May Nesbitt, 124 Conn.App. 400, 5 A.3d 518, cert. denied, 299 Conn. 917, 10 A.3d 1051 (2010), we conclude that although this appeal is moot, it satisfies the requirements of the collateral consequences exception to the mootness doctrine.

“Mootness is a question of justiciability that must be determined as a threshold matter because it implicates [a] court's subject matter jurisdiction.... Because courts are established to resolve actual controversies, before a claimed controversy is entitled to a resolution on the merits it must be justiciable. Justiciability requires (1) that there be an actual controversy between or among the parties to the dispute ... (2) that the interests of the parties be adverse ... (3) that the matter in controversy be capable of being adjudicated by judicial power ... and (4) that the determination of the controversy will result in practical relief to the complainant.” (Internal quotation marks omitted.) Reveron v. Board of Firearms Permit Examiners, 123 Conn.App. 475, 477–78, 1 A.3d 1272 (2010). In the present case, the court's order regarding the firearms belonging to the respondent has expired, and therefore this court cannot afford him any practical relief from the February 25, 2011 judgment. “[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 become moot.” (Internal quotation marks omitted.) In re Addie May Nesbitt, supra, 124 Conn.App. at 404–405, 5 A.3d 518.

Our jurisprudence recognizes certain exceptions to the mootness doctrine. “[T]he 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.) Id., at 405, 5 A.3d 518.

In the In re Addie May Nesbitt case, which also involved a risk warrant to search and seize firearms pursuant to § 29–38c, we concluded that Nesbitt's appeal satisfied the collateral consequences exception, enabling this court to review the merits of the appeal even after the expiration of the court's order seizing Nesbitt's firearms. We explained: “The respondent [argues] 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.” Id. Similar consequences exist in the present case as well. See General Statutes § 29–38c (d). We conclude, therefore, that the respondent has satisfied the requirements of the collateral consequences doctrine and that we have subject matter jurisdiction over the present appeal.

II

On appeal, the parties agree that the court improperly construed § 29–38c. The parties differ, however, as to the specific avenue that this court should use to reverse the judgment of the trial court. The respondent argues that the fourteen day time frame to hold a hearing as set forth § 29–38c (d) is directory rather than mandatory. Specifically, he contends that the “time period is one of convenience, not substance ... [and] ‘is designed to secure order, system and dispatch in the proceedings'....” He therefore claims that the court improperly construed § 29–38c (d) to require that the hearing be held within fourteen days of the execution of the risk warrant. The state counters that the fourteen day provision of § 29–38c (d) is mandatory but subject to waiver. We agree with the state.

As a preliminary matter, we identify our standard of review and the legal principles relevant to our analysis of whether § 29–38c (d) is directory or mandatory. Because this issue requires us to interpret § 29–38c (d), our review is plenary. Stewart v. Watertown, 303 Conn. 699, 710, 38 A.3d 72 (2012); see also Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 18, 848 A.2d 418 (2004) (issue of whether General Statutes § 52–102b [a] established mandatory or directory time limitation was one of statutory interpretation subject to plenary review).

“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.... 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...