Emerick v. Dept. of Public Health

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ROGER EMERICK v. DEPARTMENT OF
PUBLIC HEALTH
(AC 35643)
DiPentima, C. J., and Lavine and Keller, Js.
Argued February 6—officially released May 13, 2014

(Appeal from Superior Court, judicial district of
Hartford, Schuman, J.)
Roger Emerick, self-represented, the appellant
(plaintiff).
Kerry Anne Colson, assistant attorney general, with
whom, on the brief, was George Jepsen, attorney gen-
eral, for the appellee (defendant).
Opinion

PER CURIAM. The self-represented plaintiff, Roger
Emerick, appeals from the judgment of the trial court
dismissing his action seeking declaratory and injunctive
relief. On appeal, the plaintiff claims that the court
improperly concluded that he lacked standing and that
the case was moot. Relying on our recent decision in
Emerick v. Commissioner of Public Health, 147 Conn.
App. 292, 81 A.3d 1217 (2013), cert. denied, 311 Conn.
936, A.3d (2014), we conclude that the trial
court properly determined that the plaintiff lacked
standing and, therefore, properly dismissed the action.
On October 23, 2012, the plaintiff commenced the
present action pursuant to General Statutes § 4-175. In
the operative complaint, dated December 5, 2012, the
plaintiff alleged that the purpose of his declaratory judg-
ment was the proper interpretation of the ‘‘Connecticut
Public Swimming Pool Regulations’’ (regulations).1 Spe-
cifically, he claimed that the defendant, the Department
of Public Health (department), improperly had interpre-
ted the regulations to preclude the town of Glastonbury
(town) from replacing or having a diving board at the
Glastonbury Grange Pool. In addition to the declaratory
judgment to determine the proper interpretation of the
regulations, the plaintiff also sought injunctive relief.
On January 10, 2013, the department moved to dis-
miss the action on the grounds of lack of standing and
mootness. On March 18, 2013, the court granted the
motion to dismiss. Specifically, the court concluded
that the plaintiff had failed to establish either classical
or statutory aggrievement and, therefore, lacked stand-
ing. It also determined that the case was moot. This
appeal followed.
On December 24, 2013, this court released its opinion
in Emerick v. Commissioner of Public Health, supra,
147 Conn. App. 292. In that case, the plaintiff had
appealed from the summary judgment rendered in favor
of the town. Id., 293. The plaintiff had filed an action
against the town, the department and the Connecticut
Interlocal Risk Management Agency. Id., n.1. The plain-
tiff had alleged that ‘‘the town, pursuant to the instiga-
tion of the [department], wrongfully had removed a
diving board from a town swimming pool and replaced
it with a kiddie slide. He pleaded counts alleging negli-
gence, recklessness and fraud, but did not seek mone-
tary damages; rather, he sought a declaratory judgment
regarding the proper interpretation and application of
the [regulations].’’ (Internal quotation marks omitted.)
Id., 294. The trial court rendered summary judgment in
favor of the town on the basis of governmental immu-
nity. Id., 293.
On appeal, this court determined that the plaintiff
had failed to demonstrate either classical or statutory
aggrievement. Id., 296. This court noted that ‘‘a com-
plaint brought pursuant to § 4-175 must set forth facts
to support an inference that a provision of the general
statutes, a regulation or a final decision, or its threat-
ened application, interferes with or impairs, or threat-
ens to interfere with or impair, the legal rights or
privileges of the plaintiff.’’ (Internal quotation marks
omitted.) Id., 296–97. This court then concluded: ‘‘[T]he
plaintiff has not alleged facts sufficient to establish, if
proved, that he is statutorily aggrieved. . . . [T]he
plaintiff has not alleged facts sufficient to establish, if
proved, a specific, personal and legal interest in the
subject matter of the complaint that would satisfy the
requirements for classical aggrievement. Specifically,
the plaintiff has failed to allege facts that demonstrate
that he has an interest either in the now removed diving
board or in the interpretation of the regulations con-
cerning diving boards that is distinguishable from the
interest of the general public. As our Supreme Court
explained . . . a party who [is] simply a member of
the general public who has not demonstrated how [he]
was harmed in a unique fashion by the conduct [he]
ha[s] challenged in a declaratory judgment action ha[s]
failed to establish a colorable claim of direct injury,
and accordingly lack[s] standing to maintain the action.
. . . [T]he plaintiff has not alleged his specific, personal
and legal interest necessary to invoke the jurisdiction
of the court in an action for a declaratory judgment.
Accordingly, he does not have standing to pursue this
action, and we conclude, therefore, that it must be dis-
missed.’’ (Citations omitted; emphasis in original; inter-
nal quotation marks omitted.) Id., 298.
In the present case, the plaintiff alleged that he was
injured by the improper interpretation and application
of the regulations that resulted in the ‘‘unnecessary’’
removal of the diving board at the Glastonbury Grange
Pool. As a remedy, the plaintiff sought declaratory and
injunctive relief. The plaintiff’s complaint, however,
failed to allege facts, if proved, sufficient to establish
statutory or classical aggrievement. See Emerick v.
Commissioner of Public Health, supra, 147 Conn. App.
298. Specifically, after a careful review of the complaint,
we see no allegation of the plaintiff’s specific, personal
and legal interest necessary to invoke the jurisdiction
of the trial court in an action for a declaratory judgment.
See id. The plaintiff did not demonstrate how he has
an interest, distinguishable from that of the general
public, in the interpretation of the regulations or the
removal of the diving board. This constitutes a failure
to establish a colorable claim of a direct injury, resulting
in a lack of standing to maintain this action. We con-
clude, therefore, that the court properly granted the
department’s motion to dismiss on the basis of lack
of standing.2
The judgment is affirmed.
1
This reference appears to apply to both § 19-13-B33b of the Regulations
of Connecticut State Agencies and the Swimming Pool Design Guide avail-
able from the Connecticut Department of Public Health.
2
As a result of this conclusion, we do not reach the issue of whether the
case also is moot. See Emerick v. Commissioner of Public Health, supra,
147 Conn. App. 299 n.4.