SIMMONS et ux. v. WEST HAVEN HOUSING AUTHORITY
No. 81.
Argued December 8, 1969
Decided June 29, 1970
Francis X. Dineen argued the cause for appellants. With him on the brief was Joanne S. Faulkner.
F. Michael Ahern, Assistant Attorney General, argued the cause for the State of Connecticut as amicus curiae in support of appellee. With him on the brief were Robert K. Killian, Attorney General, and Robert L. Hirtle, Jr., Assistant Attorney General, joined by the Attorneys General for their respective States as follows: Joe Purcell of Arkansas, Duke W. Dunbar of Colorado, Theodore L. Sendak of Indiana, Kent Frizzell of Kansas, Jack P. F. Gremillion of Louisiana, James S. Erwin of Maine, A. F. Summer of Mississippi, Robert Morgan of North Carolina, Paul W. Brown of Ohio, George F. Mc-Canless of Tennessee, Vernon B. Romney of Utah, and James E. Barrett of Wyoming; and by Peter J. O’Dea, Attorney General of the Virgin Islands.
Briefs of amici curiae urging reversal were filed by the Center on Social Welfare Policy and Law et al. and by the National Legal Aid and Defender Association.
Per Curiam.
We noted probable jurisdiction in this case to decide whether § 52-542 of the Connecticut General Statutes requiring a bond for the protection of his landlord from a tenant who wished to appeal from a judgment in a summary eviction proceeding, offends either the Due Process or Equal Protection Clause of the Fourteenth Amendment if applied to foreclose appellate review for those too poor to post the bond, 394 U. S. 957 (1969).
Because of an ambiguity in the record concerning the underlying reason these appellants were denied an opportunity to appeal the trial court's judgment ordering that they be evicted, we now conclude that this appeal should be dismissed, DeBacker v. Brainard, 396 U. S. 28 (1969); Rescue Army v. Municipal Court, 331 U. S. 549 (1947).
After unsuccessfully litigating in the trial court a summary eviction proceeding begun by their landlords, appellants moved in the trial court for a waiver of the bond requirement so that they might appeal. The trial court, apparently of the view that it had the power to waive the statutory bond requirement in an appropriate case, denied appellants’ motion on a finding that “this appeal is being taken for the purpose of delay.” App. 23. Appellants sought review of the trial court’s denial of their motion in the Connecticut Circuit Court, and that court denied review and dismissed appellants’ appeal. It is unclear from that court’s opinion, however, whether it thought the bond requirement of § 52-542 left no room for a waiver, or instead based its refusal to hear appellants’ appeal in part on the trial court’s finding— cited in the Circuit Court’s opinion — that the appeal before it was taken only for purpose of delay. 5 Conn. Cir. 282, 250 A. 2d 527 (1968). Appellants’ petition to the Supreme Court of Connecticut to certify the case for review was declined.
In these circumstances, we deem it inappropriate for this Court to decide the constitutional issue tendered by appellants.
Dismissed.
Mr. Justice Blackmun took no part in the consideration or decision of this case.
At the time of the decisions below in this case, § 52-542 provided:
“Bond on appeal; stay of execution. When any appeal is taken by the defendant in an action of summary process, he shall give a sufficient bond with surety to the adverse party, to answer for all rents that may accrue or, where no lease had existed, for the reasonable value for such use and occupancy, during the pendency of such appeal, or which may be due at the time of its final disposal; and execution shall be stayed for five days from the date judgment has been rendered, but any Sunday or legal holiday intervening shall be excluded in computing such five days. No appeal shall be taken except within said period, and if an appeal is taken within said period execution shall be stayed until the final determination of the cause, unless it appears to the judge who tried the case that the appeal was taken for the purpose of delay; and if execution has not been stayed, as hereinbefore provided, execution may then issue, except as otherwise provided in sections 52-543 to 52-548, inclusive.”
This version of § 52-542 has been repealed and a revision substituted effective as of October 1, 1969, see Conn. Pub. Acts No. 296 (1969).
The opinion states in one place that “[a] sufficient bond with surety is essential to a valid appeal.” 5 Conn. Cir. 282, 285, 250 A. 2d 527, 529 (1968). The court also said that “[w]ant of bond with surety, where bond with surety is by statute a prerequisite of review, furnishes a sufficient ground of dismissal of the appeal.” Id., at 288, 250 A. 2d, at 531. At oral argument here, however, the State of Connecticut, appearing as amicus curiae, contended that the statutory bond requirement could, in an appropriate ease, be waived. The opinion of the Circuit Court did not expressly pass on this issue, which it appears was not settled under Connecticut law at the time of its decision. A subsequent decision of a Connecticut circuit court suggests that the bond requirement is an absolute and necessary condition for an appeal, but it too did not consider the waiver contention made by the State before this Court, see Housing Authority v. Jones, 5 Conn. Cir. 350, 252 A. 2d 465 (1968), Moreover, this decision did not consider the effect of the 1969 amendment to § 52-542, see n. 1, supra.
The opinion states in another place:
“On January 19, 1968, the trial court held a special hearing on the defendants’ application for waiver of security on appeal. The court found that no rent had been paid since May 1, 1967, nor had the defendants offered to pay any part of the rent due; that the record contained ‘dilatory tactics, and [was] loaded with defenses interposed to delay and obstruct the summary process action’; and that the ‘appeal is being taken for the purpose of delay.’ Accordingly, the court denied the application for waiver of security on appeal.” 5 Conn. Cir., at 284, 250 A. 2d, at 529.
The same Circuit Court, in later granting the landlord’s motion for an order terminating a stay of execution of the eviction order, expressly affirmed the trial court’s findings saying:
“We have before us the entire file in the case. The record and briefs comprise some 140 typewritten pages. Upon a review of the whole matter, we are satisfied that [the trial judge] was justified in concluding, as he did when he denied the defendants’ application for a waiver of security on appeal, ‘that this appeal is being taken for the purpose of delay.’ ” 5 Conn. Cir., at 290, 250 A. 2d, at 532.
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