Schoenhorn v. Moss ( 2023 )

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SCHOENHORN v. MOSS—CONCURRENCE
ECKER, J., concurring in the judgment. I agree with
the majority that the plaintiff, Jon L. Schoenhorn, is
not entitled to relief because his action for a writ of
mandamus is an impermissible collateral attack on a
sealing order imposed in a different action. I write sepa-
rately because I have serious doubts about whether the
justiciability doctrine applied by the majority, which it
borrows from Valvo v. Freedom of Information Com-
mission, 294 Conn. 534, 543–45, 985 A.2d 1052 (2010),
and its progeny, provides the appropriate analytic frame-
work to decide these cases. I also question whether
the majority’s analysis pertains to the subject matter
jurisdiction of the trial court or whether, instead, it is
a prudential limitation on the trial court’s authority to
grant relief. Because these issues have not been raised
by the parties or briefed and argued on appeal, I concur
in the judgment affirming the trial court’s dismissal of
the plaintiff’s action.
As the majority correctly points out, in Valvo, this
court held that a trial court does not have the ‘‘authority
to overturn sealing orders issued by another trial court
in a separate case’’ because ‘‘[i]t would wreak havoc
on the judicial system to allow a trial court . . . to
second-guess the judgment of another trial court in
a separate proceeding involving different parties, and
possibly to render an inconsistent ruling.’’ Id., 543, 545.
Indeed, it would be ‘‘completely unworkable’’ and
unnecessary to permit such a collateral attack ‘‘when
a direct challenge to the original ruling can be made by
any person at any time in the trial court with continuing
jurisdiction . . . .’’ Id. Notably, in Valvo, we character-
ized the plaintiff’s collateral challenge as moot and
‘‘nonjusticiable because no practical relief [was] avail-
able . . . .’’ Id., 548; see also Mendillo v. Tinley,
Renehan & Dost, LLP, 329 Conn. 515, 527, 187 A.3d
1154 (2018) (‘‘we agree with the defendants that the
. . . case is nonjusticiable because no practical relief
is available to the plaintiff insofar as the allegations in
the declaratory judgment complaint demonstrate that
it is nothing more than a collateral attack on the protec-
tive order imposed by the trial court [in a different
case]’’).
The concern I have is that the inability of a trial court
to grant practical relief is a necessary but not a sufficient
condition to render a case moot. A court’s inability to
grant practical relief in any particular case can arise
for countless reasons, most of which have nothing to do
with mootness or justiciability. To illustrate the point,
a claim for damages against the state is subject to dis-
missal for lack of subject matter jurisdiction due to
sovereign immunity, but the case is neither moot nor
nonjusticiable.1 More broadly, practical relief is unavail-
able as a matter of law in every case that is subject to
dismissal on the basis of a dispositive motion. The most
obvious example is a case in which a plaintiff’s com-
plaint fails to state a claim on which relief can be
granted. No one would call such a case moot or nonjusti-
ciable, even though it cannot be adjudicated because
no relief can be granted. In order to determine whether
a case is moot, and therefore not justiciable, we must
ascertain why no practical relief can be granted.
Mootness, like the related justiciability doctrines of
standing and ripeness,2 is intended to ensure that ‘‘Con-
necticut courts will rule only on live controversies—
i.e., those in which the parties before us require resolu-
tion.’’ CT Freedom Alliance, LLC v. Dept. of Education,
346 Conn. 1, 27, 287 A.3d 557 (2023). Standing, ripeness,
and mootness are ‘‘gatekeeper doctrines,’’ each of which
‘‘regulates a different dimension of entrance to the . . .
courts. The law of standing considers whether the plain-
tiff is the proper person to assert the claim, the law of
ripeness ensures that the plaintiff has not asserted the
claim too early, and the law of mootness seeks to pre-
vent the plaintiff from asserting the claim too late.’’
(Footnote omitted.) E. Lee, ‘‘Deconstitutionalizing Jus-
ticiability: The Example of Mootness,’’ 105 Harv. L. Rev.
603, 606 (1992); see also Warshak v. United States, 532
F.3d 521, 525 (6th Cir. 2008) (claim is not justiciable
‘‘when it is filed too early (making it unripe), when it
is filed too late (making it moot) or when the claimant
lacks a sufficiently concrete and redressable interest
in the dispute (depriving the plaintiff of standing)’’).
In one paradigmatic scenario, a case becomes moot
‘‘during the pendency of an appeal, [when] events have
occurred that preclude an appellate court from granting
any practical relief through its disposition of the merits
. . . .’’ (Internal quotation marks omitted.) Loisel v.
Rowe, 233 Conn. 370, 378, 660 A.2d 323 (1995). Mootness
‘‘fundamentally [is] temporal . . . .’’ Gardner v. Mutz,
962 F.3d 1329, 1337 (11th Cir. 2020).
In the present case, the fatal defect in the plaintiff’s
claim is not temporal in nature; his action for a writ of
mandamus was not filed too early or too late to obtain
practical relief. The defect has nothing to do with when
the plaintiff’s action was filed. Nor is who filed the
action the impediment to adjudication. To the contrary,
the controversy seems to be very much alive, adverse,
and contested: the plaintiff wants access to the sealed
transcript and the defendant, Melodie Moss, the chief
court reporter in the judicial district of Stamford-Nor-
walk, refuses to release the transcript unless and until it
is unsealed. The problem, instead, is that our collateral
attack doctrine holds that relief is available only in the
case in which the sealing order was filed.3 The singular
method and means by which relief must be sought (i.e.,
by filing a motion to intervene and open the family case
to obtain an order vacating the sealing order) do not
appear to me to affect the nature of the controversy
between the parties. The problem seems not to involve
either justiciability or jurisdiction but, instead, impli-
cates the important prudential interests of maintaining
‘‘fairness to all interested parties, the orderly adminis-
tration of justice, and [the] consistency and stability of
judgments.’’ Footnote 8 of the majority opinion.
The proper characterization of the defect at issue in
the present case as jurisdictional, nonjusticiable, and/or
prudential is not merely a matter of semantics without
practical effect. The United States Supreme Court has
cautioned against the ‘‘profligate’’ and indiscriminate
description of all limitations on judicial authority as
‘‘ ‘mandatory and jurisdictional’ ’’; Arbaugh v. Y & H
Corp., 546 U.S. 500, 510, 126 S. Ct. 1235, 163 L. Ed.
2d 1097 (2006); and for good reason. Such ‘‘drive-by
jurisdictional rulings’’4 should be avoided precisely
because labeling an issue as jurisdictional can have
profound procedural implications that could affect the
course, and even the outcome, of a case.5 See MOAC
Mall Holdings, LLC v. Transform Holdco, LLC,
U.S. , 143 S. Ct. 927, 936, 215 L. Ed. 2d 262 (2023)
(‘‘The ‘jurisdictional’ label is significant because it car-
ries with it unique and sometimes severe consequences.
An unmet jurisdictional precondition deprives courts
of power to hear the case, thus requiring immediate
dismissal. Hamer v. Neighborhood Housing [Services]
of Chicago, [ U.S. , 138 S. Ct. 13, 17, 199 L. Ed.
2d 249 (2017)]. And jurisdictional rules are impervious
to excuses like waiver or forfeiture. [Boechler, P.C. v.
Commissioner of Internal Revenue, U.S. , 142
S. Ct. 1493, 1497, 212 L. Ed. 2d 524 (2022)]. Courts must
also raise and enforce them sua sponte. [Fort Bend
County v. Davis, U.S. , 139 S. Ct. 1843, 1849, 204
L. Ed. 2d 116 (2019)].’’).6
The plaintiff has challenged neither the mootness
rubric as the basis for dismissal nor the characterization
of the Valvo rule as jurisdictional in nature, and, there-
fore, I need not resolve those issues in this opinion. I
raise them for future consideration in the appropriate
case. In the meantime, I agree with the majority that,
regardless of whether the defect in the plaintiff’s action
for a writ of mandamus is denominated jurisdictional,
justiciable, or something else, the bottom line is that
the plaintiff is precluded from collaterally attacking
another court’s sealing order in the present action.
Accordingly, I concur in the judgment.
1
In the federal courts, the doctrines of justiciability and jurisdiction are
not synonymous. As the United States Supreme Court has explained, ‘‘there
is a significant difference between determining whether a federal court has
jurisdiction of the subject matter and determining whether a cause over
which a court has subject matter jurisdiction is justiciable.’’ (Internal quota-
tion marks omitted.) Powell v. McCormack, 395 U.S. 486, 512, 89 S. Ct. 1944,
23 L. Ed. 2d 491 (1969); see also Baker v. Carr, 369 U.S. 186, 198, 82 S. Ct.
691, 7 L. Ed. 2d 663 (1962) (noting that ‘‘[t]he distinction between the two
grounds [jurisdiction and justiciability] is significant’’); Rinsky v. Cush-
man & Wakefield, Inc., 918 F.3d 8, 18 (1st Cir.) (cautioning against confusion
of ‘‘the very different concepts of subject matter jurisdiction and justiciabil-
ity’’), cert. denied, U.S. , 140 S. Ct. 455, 205 L. Ed. 2d 272 (2019);
Oryszak v. Sullivan, 576 F.3d 522, 527 (D.C. Cir. 2009) (Ginsburg, J., concur-
ring) (‘‘[t]hat the nonjusticiability of a claim may not be waived does not
render justiciability a jurisdictional issue, and this court has been careful
to distinguish between the two concepts’’); Gross v. German Foundation
Industrial Initiative, 456 F.3d 363, 376 (3d Cir. 2006) (‘‘[q]uestions of justi-
ciability are distinct from questions of jurisdiction, and a court with jurisdic-
tion over a claim should nonetheless decline to adjudicate it if it is not
justiciable’’). The justiciability doctrine, which derives from the case or
controversy requirement in article three, § 2, of the United States constitu-
tion; Flast v. Cohen, 392 U.S. 83, 94, 88 S. Ct. 1942, 20 L. Ed. 2d 947 (1968);
‘‘limit[s] the business of federal courts to questions presented in an adversary
context’’ and ensures that ‘‘the federal courts will not intrude into areas
committed to the other branches of government.’’ Id., 95.
Whether deliberate or by oversight, the conceptual distinction between
justiciability and jurisdiction, to my knowledge, has not yet been recognized
by the courts of this state. Our cases typically provide that ‘‘[j]usticiability
. . . implicate[s] a court’s subject matter jurisdiction and its competency
to adjudicate a particular matter.’’ (Internal quotation marks omitted.) Chap-
man Lumber, Inc. v. Tager, 288 Conn. 69, 86, 952 A.2d 1 (2008). Our reason
for equating justiciability with jurisdiction is not obvious and warrants fur-
ther consideration, particularly ‘‘because our state constitution contains no
case or controversy requirement like that found in article three of the United
States [c]onstitution . . . [and] unlike the federal courts, we do not concern
ourselves with the question of whether our [justiciability] principles—e.g.,
standing, ripeness, mootness and political question—derive from the consti-
tution itself or from prudential considerations.’’ (Citation omitted; internal
quotation marks omitted.) CT Freedom Alliance, LLC v. Dept. of Education,
346 Conn. 1, 26–27, 287 A.3d 557 (2023). The fact that our justiciability
doctrine has ‘‘evolved under [the] common law’’; (internal quotation marks
omitted) id., 27; and is not rooted in constitutional limitations, raises the
question whether it truly ‘‘implicate[s] a court’s subject matter jurisdiction
and its competency to adjudicate a particular matter.’’ (Internal quotation
marks omitted.) Connecticut Coalition for Justice in Education Funding,
Inc. v. Rell, 295 Conn. 240, 254, 990 A.2d 206 (2010).
2
In addition to mootness, standing, and ripeness, justiciability also
includes the political question doctrine. See Connecticut Coalition for Jus-
tice in Education Funding, Inc. v. Rell, 295 Conn. 240, 254, 990 A.2d 206(2010) (‘‘justiciability comprises several related doctrines, namely, standing,
ripeness, mootness and the political question doctrine’’ (internal quotation
marks omitted)). ‘‘The political question doctrine itself is based on the
principle of separation of powers . . . .’’ (Internal quotation marks omitted.)
Id., 255.
3
The present case was filed in the judicial district of Hartford, but, to
obtain relief, the plaintiff must file a motion to intervene and open the family
case in which the transcript was sealed in the judicial district of Stamford-
Norwalk. The problem is not one of venue, but, even if it were, it is well
established that ‘‘[v]enue does not involve a jurisdictional question but rather
a procedural one . . . .’’ (Internal quotation marks omitted.) Fort Trumbull
Conservancy, LLC v. New London, 282 Conn. 791, 814, 925 A.2d 292 (2007).
4
Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 91, 118 S.
Ct. 1003, 140 L. Ed. 2d 210 (1998).
5
I venture no opinion about whether any practical effects would flow from
a determination that the defect in the present case was nonjurisdictional.
It is clear that the action cannot be maintained as filed.
6
I add one word of caution. The significance of the jurisdictional label
should not be overlooked, but neither should it be overstated. ‘‘ ‘[C]alling
a rule nonjurisdictional does not mean that it is not mandatory.’ ’’ Donnelly
v. Controlled Application Review & Resolution Program Unit, 37 F.4th 44,
55–56 (2d Cir. 2022), quoting Gonzalez v. Thaler, 565 U.S. 134, 146, 132 S.
Ct. 641, 181 L. Ed. 2d 619 (2012).