The Community Watchdog Project lost its Freedom of Information Commission appeal before it began. But that doesn’t mean the group’s done.
The FOIC filed a motion for dismissal Friday against the anti-illegal-immigrant organization’s appeal this month challenging the Commission’s conclusion in July that the identities of Elm City ID card holders should remain private.
In the motion, FOIC Counsel Lisa Siegel argued that the appeals court must dismiss the appeal because the CWP missed the deadline for filing the appeal with the Hartford-New Britain Superior Court — by over two weeks. Half a dozen lawyers interviewed by the News over the weekend have said the appeal will almost certainly be dismissed.
On Sunday, Dustin Gold, chief strategist for the CWP, conceded, after reading the state law that set the FOIC appeal deadlines, that the appeal had failed. But several lawyers said the group could potentially continue the FOI process by simply asking the city for the names of ID cardholders again.
And Gold told the News earlier this month that the group is working with the Washington, D.C.-based Immigration Reform Law Institute to file a 2,300-person class-action discrimination suit against the city claiming that the ID card discriminates against American citizens because they must show proof of residency that illegal aliens are not required to demonstrate.
Community Services Administrator Kica Matos, speaking for the city, declined to comment last week on the discrimination suit because it has not yet been filed and she wants to read the official briefs first. But of the motion for dismissal, she said, “This seems like a pretty clear-cut case for dismissal.”
61 DAYS LATER
According to Friday’s motion, attorney Patricia Cofrancesco — who handled the appeal for plaintiff Gold and journalist Chris Powell — did not file the appeals brief with the state Superior Court clerk until Sept. 16, a full 16 days after the Aug. 31 deadline. According to Siegel, the Aug. 31 deadline was set by the 1988 Uniform Administration Procedure Act, which mandates that appeals be filed within 45 days of the commission’s mailing its decision to the plaintiffs.
The motion for dismissal cites a unanimous 1993 Connecticut Supreme Court case that states that fulfilling the deadline is “prerequisite to subject matter jurisdiction.” Subject matter jurisdiction refers to the ability of courts to hear and decide a case.
A brief search by the News over the weekend revealed that this case, Glastonbury Volunteer Ambulance Association, Inc v. FOIC et al, has been used as precedent for state court decisions as recently as last month.
In July, the five-member FOIC found that releasing the identities of cardholders would constitute a public-safety risk. The commission mailed the notice of its decision on July 17, starting the 45-day clock ticking.
Gold said Saturday he had “assumed” the appeals brief was filed with the court on schedule and “will talk to attorney Cofrancesco on Monday.” He added Sunday that despite leaving messages with the attorney’s assistant, Cofrancesco has not called him back.
“The attorney told me it might be something like a day late,” he said Saturday. Confrancesco also told him that “there are 45 days to serve all the parties notice [of the appeal], and then there’s a deadline at 60 with the court,” he said.
The precedent from 1993, however, holds that the 45-day deadline applies not only “to the service of an appeal” to the appropriate parties but also “to the filing of an administrative appeal” with the court clerk.
That standard would indicate that the CWP’s appeal was more than two weeks late.
Gold said Saturday that initially the CWP had been unsure as to whether the appeal would be filed at all and that Cofrancesco was retained late in the process.
Cofrancesco did not respond to repeated requests for comment left over the weekend on her home and office voicemails, with an office assistant and with Martin Echter, a fellow attorney at her office.
Gold conceded as early as Saturday that if, in fact, the appeals was filed passed the deadline, “the court can throw it out.”
16 DAYS TOO LATE
Several lawyers interviewed Sunday said the appeal has virtually no chance at regaining subject matter jurisdiction.
“The court decisions on filing on the appropriate time period are pretty strict,” said Thomas Mooney ’73, a partner at the Hartford-based law firm Shipman & Goodwin, who has been involved in a number of FOIC cases in the past. “[The courts] talk in terms of an appeal being a privilege, not a right, and to avail yourself of the privilege, the court expects you to follow the timeline … The court does not have the authority to hear an appeal if it is not filled within a timely matter.”
Despite the blunder, the group may be able to restart the FOIC process “by asking for [the list] again,” Mooney said, referring to the file with the names and addresses of all city residents who have been issued ID cards.
Gold said Sunday night he had heard about the possibility of restarting the process from attorney friends, and he would “consider” doing so if the discrimination suit does not “take up too much of my time.”
“I already have like 13 FOIs in the city,” he said. “I don’t have a problem filing another one.”
Matos could not immediately be reached for comment Sunday night for follow-up. City Hall spokeswoman Jessica Mayorga could not be reached this weekend because she is attending an out-of-town conference.
NINE DAYS TO LAWSUIT
Meanwhile, Gold is not planning on backing down. He said he is working with IRLI General Counsel Michael Hethmon on the discrimination suit against the city. Hethmon is currently writing the lawsuit, Gold added, and will file papers with the city and the federal courts by Oct. 1.
In the lawsuit, the two will argue that the ID card application process is discriminatory to “American citizens” because, while citizens must fulfill the city’s proof-of-residency requirement, the requirement cannot be completed by illegal immigrants — who legally cannot claim domicile within the United States, Gold said — but some are “allowed” to receive the card anyway.
Gold’s argument that illegal immigrants cannot claim residency stems from a recent California appeals court decision that giving illegal aliens in-state tuition benefits for post-secondary education is a violation of federal statute. The out-of-state plaintiffs in the California court case are represented by Hethmon.
Gold said 2,300 residents of the greater New Haven area will sign on to the class-action suit. Thirty percent of the 2,300 will be city residents, he added.
Hethmon did not return repeated e-mail messages and phone messages left on his office voicemail over the weekend.
The IRLI, an affiliate of the Washington D.C.-based Federation for American Immigration Reform, is “America’s only public interest law organization working exclusively to protect the legal rights, privileges, and property of U.S. citizens and their communities from injuries and damages caused by unlawful immigration,” according to its Web site.