PETER J. AVOLETTA ET AL. v. STATE OF CONNECTICUT
(AC 35704)
Appellate Court of Connecticut
Argued April 24—officially released August 12, 2014
Alvord, Bear and Harper, Js.*
(Appeal from Superior Court, judicial district of Hartford, Sheridan, J.)
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BEAR, J. The plaintiffs, Peter J. Avoletta, Matthew Avoletta, and their mother, Joanne Avoletta, appeal from the judgment of the trial court dismissing their action against the defendant, the state of Connecticut, for lack of subject matter jurisdiction. The plaintiffs claim that the court erred in holding that the General Assembly’s joint resolution in 2011 enabling them to sue the defendant was an unconstitutional public emolument. We disagree and affirm the judgment of the trial court.
The following relevant facts, as set forth in the court’s May 6, 2013 memorandum of decision, and procedural history are relevant to our resolution of this appeal. ‘‘In their complaint, the plaintiffs allege that the defendant failed to provide Peter Avoletta and Matthew Avoletta a free appropriate public education in a safe setting in violation of their rights under the federal and state constitutions and under numerous state statutes.
‘‘Specifically, the plaintiffs allege the following. From August, 1999 through June, 2002, Peter attended Torrington Middle School, and from August, 2002 through June, 2003, he attended Torrington High School. From August, 1997 through June, 2003, Matthew attended Torrington Elementary School. The plaintiffs allege that at all relevant times, the defendant failed to ensure that Torrington Middle School and Torrington High School were properly maintained. The plaintiffs allege that those buildings incurred water leaks, bacteria, mold, dampness, and poor indoor air quality.
‘‘As a result of the poor conditions, Peter and Matthew suffered physical ailments. . . . [D]uring the 2003-2004 school year, Peter received homebound instruction from Torrington High School. For the 2004-2005 and 2005-2006 school years, the plaintiffs requested that Peter be placed in an out-of-district public or private school, rather than return to Torrington High School. Torrington did not acquiesce to this request, and Peter’s parents placed him in a private school at their own expense from August, 2004, through his graduation in June, 2006.
‘‘As to Matthew . . . Matthew’s physician recommended that the environment in the middle school, which Matthew was to enter in August, 2003, was hostile to a child with Matthew’s conditions and that Matthew’s attendance at Torrington Middle School was ‘medically contraindicated.’ From August, 2003, through his graduation in June, 2010, Matthew attended a private school. The plaintiffs now seek reimbursement for tuition and costs for the private education. . . .
‘‘On May 2, 2007, the plaintiffs filed a notice of claim to the Claims Commissioner alleging essentially the same facts presently before the court. Following a
‘‘Subsequently, the plaintiffs, pursuant to
‘‘On May 27, 2011, and June 8, 2011, respectively, the House [of Representatives] and the Senate voted unanimously to approve House Joint Resolution No. 11-34, which states, in relevant part: ‘Resolved by this Assembly . . . Sec. 2. That the decision of the Claims Commissioner, file numbers 21101, 21102 and 21103 of said commissioner, ordering the dismissal of the claims against the state in excess of seven thousand five hundred dollars of Joanne Avoletta, Peter J. Avoletta and Matthew Avoletta, is vacated and the claimants are authorized to institute and prosecute to final judgment an action against the state to recover damages as compensation for injury to person or damage to property, or both, allegedly suffered by the claimants as set forth in said claims. Such action shall be brought not later than one year from the date of the final adoption by the General Assembly of this resolution.’
‘‘On May 10, 2012, the plaintiffs instituted this action. On July 30, 2012, the defendant filed this motion to dismiss on the ground that the plaintiffs’ claims are barred by the doctrine of sovereign immunity. The [defendant] argues that the joint resolution that gave the plaintiffs the right to sue was not done in accordance with proper legislative procedure. The [defendant] further argues that, even if the resolution was validly executed, it is constitutionally infirm as a public emolument.’’ The court held with respect to the defendant’s first argument: ‘‘[U]nder the facts and circumstances of the present case, the legislature was within its rights to grant the right to sue via a joint resolution.’’ It held with respect to the defendant’s second argument: ‘‘Allowing the plaintiffs to file suit directly in this matter, when this court has determined that their action was untimely, provides them a right unavailable to other parties. While the legislature need not enact a special act when vacating the Claims Commissioner’s dismissal of the matter, allowing a plaintiff with an untimely claim to circumvent
I
LEGAL STANDARDS
A
Standard of Review
‘‘We begin by setting out the applicable legal principles and standard of review. A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court. . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. . . . [O]ur review of the trial court’s ultimate legal conclusion and resulting grant of the motion to dismiss will be de novo.’’ (Internal quotation marks omitted.) Hayes Family Ltd. Partnership v. Glastonbury, 132 Conn. App. 218, 221, 31 A.3d 429 (2011).
‘‘When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light. . . . In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader. . . . The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone. . . . [I]n determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.’’ (Citation omitted; internal quotation marks omitted.) Id., 221–22.
B
Sovereign Immunity
‘‘[T]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss. . . . A sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends. . . . The doctrine of sovereign immunity operates as a strong presumption in favor of the state’s immunity from liability or suit. . . . [T]o circumvent the strong presumption of sovereign immunity in an action for monetary damages, the burden is on the plaintiff to show that . . . the legislature, either expressly or by force of a necessary implication, statutorily waived the state’s sovereign immunity . . . . In the absence of a statutory waiver of sovereign immunity,
‘‘When sovereign immunity has not been waived, the . . . commissioner is authorized by statute to hear monetary claims against the state and determine whether the claimant has a cognizable claim. . . . The . . . commissioner, if he deems it just and equitable, may sanction suit against the state on any claim which, in his opinion, presents an issue of law or fact under which the state, were it a private person, could be liable.’’ (Citation omitted; internal quotation marks omitted.) Lagassey v. State, 268 Conn. 723, 732, 846 A.2d 831 (2004).
‘‘
‘‘Subsection (b) of
‘‘A claimant [also] may seek review by the General Assembly in certain cases where the Claims Commissioner has denied or dismissed the claim requesting permission to sue the state.
II
THE PLAINTIFFS’ CLAIM
The plaintiffs have articulated their claim as follows: ‘‘The trial court abused its discretion in granting the motion to dismiss when it improperly concluded that Joint Resolution No. 11-34, adopted pursuant to
In resolving the plaintiffs’ claim, we look to a case recently decided by this court, Morneau v. State, supra, 150 Conn. App. 237, for guidance.2 Morneau also involved: (1) the Claims Commissioner’s dismissal of the plaintiff’s request for permission to sue the state defendants because the request was untimely; (2) the plaintiff’s subsequent request to the General Assembly for review of the Claims Commissioner’s decision under
Like the plaintiff’s claim in Morneau, the plaintiffs’ claim in the present case challenges both the court’s determination that their action was untimely and the determination that the resolution was an unconstitutional public emolument with respect to them. ‘‘[O]ur inquiry [therefore] is twofold: Whether the court properly decided that [the plaintiffs’ cause] of action [was] untimely and, if so, whether it properly concluded that the resolution did not serve a public purpose and therefore was unconstitutional.’’ Id., 256.
We look to Lagassey v. State, supra, 268 Conn. 735–36, for further explanation regarding the twofold nature of our inquiry: ‘‘[T]he plaintiff will prevail if she can demonstrate that the initial determination of the commissioner concerning noncompliance with
A
Whether the Plaintiffs’ Action was Untimely
The plaintiffs argue that the court erred in concluding that their action was untimely under
In addressing this argument, we look to Morneau, which, in turn, looked to Lagassey v. State, supra, 268 Conn. 723: ‘‘In its analysis, our Supreme Court considered
The court in the present case determined: ‘‘Here, the plaintiffs’ claims are all based in the fact that Peter Avoletta and Matthew Avoletta were denied a fair and appropriate public education. The plaintiffs undisputedly discovered a harm by the time Peter and Matthew were taken out of the Torrington public schools. Peter received homebound education in 2003-2004 and attended private school thereafter. Matthew attended private school from 2003-2004 until his graduation. Regardless of the specific dates of these actions, the plaintiffs were clearly aware of the school conditions far more than a year before the May 2, 2007 filing with the Claims Commissioner.
‘‘The plaintiffs contend, however, that they were unaware of harm caused by the state until a later date. The plaintiffs acknowledge that, in 2005, upon the local school district’s denial of their claim for alternative school placement under the federal Individuals with Disabilities Education Act (IDEA) [20 U.S.C. § 1400 et seq.], the state Department of Education and state Office of Protection and Advocacy for Persons with Disabilities advised the plaintiffs to seek review of the school district’s denial. The denial was confirmed after review, apparently also in 2005. The plaintiffs allege that the [defendant] did not, at that time, advise the plaintiffs that they could further appeal. The plaintiffs allege that they were unaware of this right for review until they hired private counsel in 2006. They argue, therefore, that they were not aware that they had an actionable claim until after they hired counsel. The date of the actionable harm cannot be delayed until the plaintiffs acquired counsel. Even if the date of the harm is as late as the [defendant’s] failure to advise the plaintiffs of their rights in 2005, the 2007 filing with the Claims Commissioner was untimely.’’
The plaintiffs argue that the court applied the wrong
We disagree. The plaintiffs seem to argue that the statute of limitations on their claim began to run when the defendant failed to act in accordance with Blumenthal’s September 15, 2006 communication to Coleman. Yet, the date that they use in their statute of limitations analysis is the date of the communication, not the date of the defendant’s alleged failure to comply with the communication. We further note that the plaintiffs have not provided any analysis or authority to explain how September 15, 2006, or any date within one year of May 2, 2007, qualifies as the date when they ‘‘discover[ed], or in the exercise of reasonable care, should have discovered the essential elements of’’ their claim; (internal quotation marks omitted) Morneau v. State, supra, 150 Conn. App. 257; that the defendant violated certain state constitutional and statutory provisions by failing to provide ‘‘a free appropriate public education to [Peter Avoletta and Matthew Avoletta] in a safe school setting without discrimination due to their disabilities.’’
This court previously has stated with respect to the statute of limitations in
B
Whether the Resolution Was an Unconstitutional Public Emolument
The plaintiffs also argue that the court erred in holding that the resolution was an unconstitutional public emolument because the court misapplied the relevant law, the defendant did not meet its burden of demonstrating that the sole basis of the resolution was the plaintiffs’ personal gain, and the General Assembly reasonably could have concluded that the resolution served a public purpose, given the evidence before it. We are not persuaded.
The court determined: ‘‘Here, the plaintiffs have been granted two rights not otherwise given to the public. First, the plaintiffs have been given the right to pursue an untimely claim. Second, because the legislature did not find the claim untimely, the plaintiffs have been given the right to pursue this suit in Superior Court without receiving a decision on the merits from the Claims Commissioner as would have occurred if the legislature correctly concurred with the Claims Commissioner’s decision regarding timeliness and either upheld the commissioner’s decision or chose to use
‘‘In the joint resolution, the legislature has offered no public purpose for granting the plaintiffs such rights. The resolution says only that the plaintiffs may sue. The legislative history does nothing more to illuminate a public purpose. . . .
‘‘Allowing the plaintiffs to file suit directly in this matter, when this court has determined that their action was untimely, provides them with a right unavailable to other parties. While the legislature need not enact a special act when vacating the Claims Commissioner’s dismissal of the matter, allowing a plaintiff with an
Morneau is wholly dispositive of the plaintiffs’ argument: ‘‘To prevail under article first, § 1, of our constitution,7 the state must demonstrate that the sole objective of the General Assembly is to grant personal gain or advantage to an individual. . . . If, however, an enactment serves a legitimate public purpose, then it will withstand a challenge under article first, § 1. . . .
‘‘The scope of our review as to whether an enactment serves a public purpose is limited. [W]hat constitutes a public purpose is primarily a question for the legislature, and its determination should not be reversed by the court unless it is manifestly and palpably incorrect. . . . In determining whether a special act serves a public purpose, a court must uphold it unless there is no reasonable ground upon which it can be sustained. . . . Thus, if there be the least possibility that [the special act] will be promotive in any degree of the public welfare . . . we are bound to uphold it against a constitutional challenge predicated on article first, § 1 [of the state constitution]. . . .
‘‘In this regard, although a special act passed under
‘‘By contrast, we have consistently held that legislation seeking to remedy a procedural default for which the state is not responsible does not serve a public purpose and, accordingly, runs afoul of article first, § 1, of the state constitution. . . . Similarly, where a special act has allowed a person named therein to bring a suit based upon a statutory cause of action that would otherwise be barred for failure to comply with a time limit specified in the statute, we have ordinarily been unable to discern any public purpose sufficient to sustain the enactment. . . .
‘‘Section 32 of the resolution authorizes the plaintiff, and only the plaintiff, to commence a lawsuit against the state for his alleged injuries, as detailed in the claim presented to the Claims Commissioner. Notably absent in this case was a declaration that it served a public purpose, nor can we discern one. It merely provided the plaintiff with an exclusive and private benefit. No enactment creating a preference can withstand constitutional attack if the sole objective of the General Assembly is to grant personal gain or advantage to an
Other than their respective references to the specific claimants and their file numbers, §§ 2 and 32 of the resolution are worded identically. The holding of this court in Morneau that the resolution was an unconstitutional public emolument with respect to the plaintiff in that case therefore applies with equal force to the plaintiffs in this case. For this reason, the plaintiffs’ argument fails.
The judgment is affirmed.
In this opinion the other judges concurred.
ALVORD, J.
BEAR, J.
HARPER, J.