Burbank v. Board of Education
Burbank v. Board of Education
Opinion of the Court
Opinion
The named plaintiff, Harold Burbank, and the plaintiffs Marianne Burbank and A.B.
Thereafter, on April 3, 2009, Harold Burbank and Marianne Burbank commenced the present action against the board on their own behalf and as parents and next friends of their child, A.B., who, at the time of the drug sweep, was a student at Canton High School. The plaintiffs sought to enjoin the board from implementing its policy of conducting warrantless, suspi-cionless sweeps on school property with drug-sniffing dogs or, alternatively, to require school officials to provide at least forty-eight hours notice to parents prior to such a sweep. According to the complaint, the board’s policy of conducting unannounced sweeps on school property violated (1) the Burbanks’ rights as parents to manage the safety and education of their child under
On September 14, 2009, following a hearing on the plaintiffs’ application for an injunction, the trial court issued a memorandum of decision denying the application. The court declined to review the plaintiffs’ state constitutional claims because they had been inadequately briefed.
On appeal, the plaintiffs contend that the trial court improperly failed to review their state constitutional claims and, further, that the board’s policy of allowing law enforcement personnel to conduct the sweeps violates the state constitution, at least in the absence of advance notice of the sweeps.
“Mootness implicates [this] court’s subject matter jurisdiction and is thus a threshold matter for us to resolve. ... It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow. ... An actual controversy must exist not only at the time the appeal is taken, but also throughout the pen-dency 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. . . . [Under such circumstances, the case can not be reviewed] unless the defendant’s claim falls under an exception to the mootness doctrine ....
“The mootness doctrine does not preclude a court from addressing an issue that is capable of repetition, yet evading review. . . . [F] or an otherwise moot question to qualify for review under the capable of repetition, yet evading review exception, it must meet three requirements. First, the challenged action, or the effect of the challenged action, by its very nature must be of a limited duration so that there is a strong likelihood that the substantial majority of cases raising a question about its validity will become moot before appellate litigation can be concluded. Second, there must be a reasonable likelihood that the question presented in the pending case will arise again in the future, and that it will affect either the same complaining party or a
“The first element in the analysis pertains to the length of the challenged action . . . [and whether there are] functionally insurmountable time constraints [to full appellate review]. . . . The basis for this element derives from the nature of the exception. If an action or its effects [are] not of inherently limited duration, the action can be reviewed the next time it arises, when it will present an ongoing live controversy. Moreover, if the question presented is not strongly likely to become moot in the substantial majority of cases in which it arises, the urgency of deciding the pending case is significantly reduced.” (Citations omitted.) Loisel v. Rowe, 233 Conn. 370, 383-84, 660 A.2d 323 (1995). This requirement is satisfied when there is a strong likelihood that the inherently limited duration of the action will cause a substantial majority of cases raising the same issue to become moot prior to final appellate resolution. See Sweeney v. Sweeney, 271 Conn. 193, 201-202, 856 A.2d 997 (2004).
As we noted previously, A.B., a student when this action was commenced, graduated from Canton High School in June, 2010. Consequently, A.B. no longer is subject to the board’s policies. Thus, neither A.B. nor A.B.’s parents can be affected personally by any decision of this court granting them the injunctive relief that they have sought, namely, prohibiting the board from implementing its policy of allowing law enforcement personnel to conduct warrantless sweeps on school property with drug-sniffing dogs or, alternatively, requiring that the board provide at least forty-
Furthermore, we are not persuaded that the claims that the plaintiffs raise in this appeal qualify for review under the capable of repetition, yet evading review exception to the mootness doctrine. It is true, of course, that the opportunity of a parent or a student to litigate a claim challenging the board’s policy is inherently limited in duration due to the fact that the effect of the policy on any particular student necessarily terminates upon that student’s graduation. This limitation, however, is not so substantial, when compared to the time necessary to conclude appellate litigation, that it is very likely to cause a significant majority of cases raising a challenge to the policy to become moot in advance of final appellate resolution. See Sweeney v. Sweeney, supra, 271 Conn. 201-202. This is so because the board’s policy concerning the sweeps applies to all students at Canton High School and Canton Middle School. Thus, an action challenging the policy could present a live controversy for as long as six years before becoming moot if that action were to be brought by a first year middle school student and the student’s parents. Indeed, it appears that the present action itself would not have been rendered moot if one of the original plaintiffs, whose child was a student at Canton Middle School when the action was filed, had remained a party to the action.
The appeal is dismissed.
In this opinion the other justices concurred.
Harold Burbank and Marianne Burbank are spouses, and A.B. is their child. Harold Burbank, Marianne Burbank, Elisa Villa and Jane Latus were the original plaintiffs in the present action. A.B. and I.J., Latus’ child, were added as plaintiffs, and Villa withdrew from the action. Latus and I.J. are not parties to this appeal. In the interest of simplicity, we refer to Harold Burbank, Marianne Burbank and A.B. collectively as the plaintiffs throughout this opinion.
The plaintiffs appealed to the Appellate Court, and we transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1.
Canton Board of Education Policy 5145.122 (a) provides in relevant part: “The [b]oard shall permit the administration to invite law enforcement agencies ... to search school property with dogs trained for the purpose of detecting the presence of illegal substances, when necessary to protect the health and safety of students, employees or property and to detect the presence of illegal substances or contraband, including alcohol and/or drugs. The use of trained canine sniffing dogs is subject to the following:
“3. All school property such as lockers, classrooms, parking areas and storage areas may be searched.
“5. Once notification has been given to parents and students, through the inclusion of the policies in the student and/or parent handbook, the school district will have met its obligation to advertise the searches. Additional notices need not be given and actual times or dates of planned searches need not be released in advance.
“6. Only the dog’s official handler will determine what constitutes an alert by the dog. If the dog alerts on a particular item or place, the student having*836 the use of that item or place or responsibility for it shall be called to witness the search. If a dog alerts on a locked or unlocked vehicle, the student who brought it onto district property shall be asked to unlock it for inspection.
“7. Law enforcement agencies will be given full authorization to investigate and prosecute any person(s) found to be responsible for illegal substances(s) on school property.”
Article first, § 8, of the Connecticut constitution provides in relevant part: “No person shall be . . . deprived of life, liberty or property without due process of law . . . .”
Article first, § 9, of the Connecticut constitution provides: “No person shall be arrested, detained or punished, except in cases clearly warranted by law.”
We note that, although the plaintiffs relied on article first, §§ 8 and 9, of the Connecticut constitution in support of their claim that the board’s policy of conducting warrantless sweeps on school property violated A.B.’s right to be free from unreasonable searches and seizures, article first, § 7, is the provision of the state constitution that expressly safeguards persons from “unreasonable searches or seizures . . . .”
The trial court had given the plaintiffs additional time within which to supplement their state constitutional analysis; see State v. Geisler, 222 Conn. 672, 684-85, 610 A.2d 1225 (1992) (“[i]n order to construe the contours of our state constitution and reach reasoned and principled results, the following tools of analysis should be considered to the extent applicable: [1] the textual approach ... [2] holdings and dicta of this court, and the Appellate Court ... [3] federal precedent ... [4] sister state decisions ... [5] the historical approach, including the historical constitutional setting and the debates of the framers . . . and [6] economic/sociological considerations” [citations omitted]); but the plaintiffs failed to do so.
Specifically, the trial court concluded, in rejecting the plaintiffs’ constitutional claims, that a warrantless sweep using drug-sniffing dogs is not a
The plaintiffs also claim on appeal that the trial court improperly excluded, on hearsay grounds, certain evidence that, in the view of the plaintiffs, demonstrates the harm to students that was caused by the sweep.
Neither party has raised the issue of mootness on appeal. Because, however, mootness implicates this court’s subject matter jurisdiction, we address it sua sponte. See, e.g., Dutkiewicz v. Dutkiewicz, 289 Conn. 362, 366 and n.6, 957 A.2d 821 (2008).
Of course, this case would not be moot if the plaintiffs had sought money damages arising out of the June 5,2008 sweep. The plaintiffs, however, have sought injunctive relief only.
Elisa Villa, who withdrew from the action; see footnote 1 of this opinion; apparently was the parent of a student at Canton Middle School.
We also note that the plaintiffs did not bring the present action until approximately ten months after the sweep had occurred, a period that accounts for approximately one third of the total amount of time that has elapsed from the date of the sweep until our resolution of the plaintiffs’ claims on appeal.
Reference
- Full Case Name
- HAROLD BURBANK v. BOARD OF EDUCATION OF THE TOWN OF CANTON
- Cited By
- 14 cases
- Status
- Published