RICKY A. MORNEAU v. STATE OF CONNECTICUT ET AL.
AC 35423
Appellate Court of Connecticut
Argued October 22, 2013—officially released May 20, 2014
DiPentima, C. J., and Sheldon and Flynn, Js.
(Appeal from Superior Court, judicial district of Middlesex, Domnarski, J.)
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Ricky A. Morneau, self-represented, the appellant (plaintiff).
Michael K. Skold, assistant attorney general, with whom, on the brief, was George Jepsen, attorney general, for the appellees (named defendant et al.).
Opinion
DiPENTIMA,
The following facts and procedural history are necessary for our resolution of this appeal.3 In May, 2007, the plaintiff commenced a three count lawsuit in the United States District Court for the District of Connecticut. In that federal action, the plaintiff alleged that state Marshals Louis C. Aresco and Louis Corneroli had refused to serve process for him. The plaintiff also claimed that he had sent a letter complaining about the two marshals to then Attorney General Richard Blumenthal and that the letter thereafter was forwarded to the State Marshal Commission.4 After conducting an investigation,
On August 24, 2009, the plaintiff commenced an action in the Superior Court premised on allegations that state Marshal Albenie Gagnon had overbilled the plaintiff for services and made false statements, the State Marshal Commission had denied his request for certain documents, made pursuant to the Freedom of Information Act,
On September 8, 2009, the plaintiff filed a claim6 with the Claims Commissioner, requesting permission to sue the state. In his claim, the plaintiff alleged: (1) overbilling by state marshals in violation of
The state filed a motion to dismiss, arguing, inter alia, that the Claims Commission lacked subject matter jurisdiction because the claim presented by the plaintiff was untimely. On May 3, 2010, the plaintiff filed an objection to the motion to dismiss, and included a ‘‘chronology of events’’ in support of his opposition. The Claims Commissioner issued a memorandum of decision on May 21, 2010. He noted that the plaintiff alleged that he had been overbilled by state marshals on two separate occasions and that these improper actions occurred in or about August, 2007. Relying on
In accordance with
The plaintiff then commenced the present action with a six count complaint, alleging: (1) violations of
Pursuant to
Before addressing the specifics of the plaintiff’s claims on appeal, we set forth the legal principles regarding a motion to dismiss. ‘‘The standard of review for a court’s decision on a motion to dismiss is well settled. A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. . . . [O]ur review of the court’s ultimate legal conclusion and resulting [determination] of the motion to dismiss will be de novo. . . . 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.’’ (Internal quotation marks omitted.) Gold v. Rowland, 296 Conn. 186, 200–201, 994 A.2d 106 (2010); Bagg v. Thompson, 114 Conn. App. 30, 37–38, 968 A.2d 468 (2009).
I
The plaintiff first claims that the court improperly determined the scope of the legislative waiver of sovereign immunity. The defendants counter that the trial court properly concluded that the resolution of the General Assembly waived sovereign immunity only for the causes of actions that had been raised before the Claims Commissioner and that any other actions are barred by sovereign immunity. Specifically, the defendants maintain that the court properly dismissed (1) aspects of count one regarding the actions and omissions of Attorney General George Jepsen, Assistant Attorney General Philip Miller
As an initial matter, we set forth the relevant legal principles regarding sovereign immunity.14 ‘‘Sovereign immunity relates to a court’s subject matter jurisdiction over a case, and therefore presents a question of law over which we exercise de novo review. . . . In so doing, we must decide whether [the trial court’s] conclusions are legally and logically correct and find support in the facts that appear in the record. . . . The principle that the state cannot be sued without its consent, or sovereign immunity, is well established under our case law. . . . It has deep roots in this state and our legal system in general, finding its origin in ancient common law. . . . Not only have we recognized the state’s immunity as an entity, but [w]e have also recognized that because the state can act only through its officers and agents, a suit against a state officer concerning a matter in which the officer represents the state is, in effect, against the state. . . . Exceptions to this doctrine are few and narrowly construed under our jurisprudence. . . .
‘‘[T]he sovereign immunity enjoyed by the state is not absolute. There are [three] exceptions: (1) when the legislature, either expressly or by force of a necessary implication, statutorily waives the state’s sovereign immunity . . . (2) when an action seeks declaratory or injunctive relief on the basis of a substantial claim that the state or one of its officers has violated the plaintiff’s constitutional rights . . . and (3) when an action seeks declaratory or injunctive relief on the basis of a substantial allegation of wrongful conduct to promote an illegal purpose in excess of the officer’s statutory authority. . . . For a claim made pursuant to the first exception, this court has recognized the well established principle that statutes in derogation of sovereign immunity should be strictly construed. . . . Where there is any doubt about their meaning or intent they are given the effect which makes the least rather than the most change in sovereign immunity. . . . In the absence of a proper factual basis in the complaint to support the applicability of these exceptions, the granting of a motion to dismiss on sovereign immunity grounds is proper.’’ (Internal quotation marks omitted.) Paragon Construction Co. v. Dept. of Public Works, 130 Conn. App. 211, 221–22, 23 A.3d 732 (2011); see also Markley v. Dept. of Public Utility Control, 301 Conn. 56, 65–66, 23 A.3d 668 (2011); Bacon Construction Co. v. Dept. of Public Works, 294 Conn. 695, 706, 987 A.2d 348 (2010).
Pursuant to
The plaintiff then commenced this action, and in his operative complaint set forth the following causes of action: (1) violations of
The trial court concluded that the resolution of the General Assembly authorizing the plaintiff to bring his lawsuit against the state was a waiver of sovereign immunity and therefore was to be construed narrowly. It then determined that there was nothing in the plaintiff’s initial claim to the Claims Commissioner that would support the distinct legal elements for the causes of action of negligent infliction of emotional distress, violations of CUTPA and vexatious litigation, as well as the specific § 1983 claims against the attorneys general and the State Marshal Commission. We agree with the analysis of the trial court.
The doctrine of sovereign immunity provides a strong presumption that the state is immune from suit or liability. Hicks v. State, 297 Conn. 798, 801, 1 A.3d 39 (2010). Although the legislature is statutorily authorized to waive sovereign immunity by vacating a denial of permission to sue from the Claims Commissioner, that did not occur in the present case with respect to the § 1983 claims against the attorneys general17 and the State Marshal Commission for failing to comply with a formal written opinion by the Office of the Attorney General, the negligent infliction of emotional distress, CUTPA and vexatious litigation claims found in portions of count one, and all of counts two, four and five of the plaintiff’s complaint.
The language of the joint resolution expressly waived sovereign immunity only for the claim presented to the Claims Commissioner. The causes of action in the subsequent complaint discussed in this part of our opinion were not included in the proceedings before the Claims Commission and never were addressed or
Moreover, as we noted previously, our law recognizes that statutes in derogation of sovereign immunity are strictly construed. See, e.g., DaimlerChrysler Corp. v. Law, 284 Conn. 701, 711, 937 A.2d 675 (2007). Where there is any doubt about its meaning or intent, we should give it the effect that makes the least rather than the most change in sovereign immunity. Id., 712. We note that the rationale of Sarges v. State, 26 Conn. Supp. 24, 209 A.2d 886 (1965), bolsters our analysis. In Sarges, the plaintiff obtained permission to sue the state for $20,000 in damages. Id., 25. In his lawsuit, however, the plaintiff sought to recover $75,000. The state successfully prosecuted a plea in abatement on the ground that the suit for damages was in excess of those for which permission to sue was granted. Id. Relying on the principle of strict construction of statutes that allow lawsuits against the state, the court reasoned that ‘‘[n]othing can be taken by implication against the state.’’ Id., 27. It further noted that the permission to sue the state was related to the $20,000 requested and that ‘‘[s]uch authorization was no carte blanche authority to
We agree with the trial court that the General Assembly never waived sovereign immunity with respect to these causes of action. Absent such a waiver, the general presumption applies, and the defendants are entitled to sovereign immunity. See, e.g., Chief Information Officer v. Computers Plus Center, Inc., 310 Conn. 60, 91, 74 A.3d 1242 (2013); Lagassey v. State, 268 Conn. 723, 732, 846 A.2d 831 (2004). We conclude, therefore, that the court properly granted the motion to dismiss with respect to the part of count one regarding the § 1983 allegations against the attorneys general and the State Marshal Commission for refusing to comply with a formal written opinion from the Office of the Attorney General, the count alleging negligent infliction of emotional distress (count two), the count alleging CUTPA violations (count four), and the count alleging vexatious litigation (count five).
II
The plaintiff next claims that the court improperly concluded that the resolution of the General Assembly was an unconstitutional public emolument with respect to his remaining § 1983 allegations against Gagnon, Bennett and the State Marshal Commission19 in count one and the count alleging federal RICO and state CORA violations (count three). The defendants counter20 that the resolution did not
Section 4-148 (a) sets forth the time frame in which a claimant must present a claim to the Claims Commissioner. Specifically, that subsection provides that ‘‘no claim shall be presented . . . but within one year after it accrues. Claims for injury to person or damage to property shall be deemed to accrue on the date when the damage or injury is sustained or discovered or in the exercise of reasonable care should have been discovered, provided no claim shall be presented more than three years from the date of the act or event complaint of.’’
Subsection (b) of § 4-148 provides a legislative exception to the time frame for obtaining a waiver of sovereign immunity. ‘‘The General Assembly may, by special act, authorize a person to present a claim to the Claims Commissioner after the time limitations set forth in subsection (a) of this section have expired if it deems such authorization to be just and equitable and makes an express finding that such authorization is supported by compelling equitable circumstances and would serve a public purpose. . . .’’
A
The first question for this court is whether the trial court properly concluded that the balance of the plaintiff’s § 1983 allegations against the State Marshal Commission and his allegations that Bennett and Gagnon violated the federal RICO and state CORA statutes were untimely. As noted previously,
A discussion of Lagassey v. State, supra, 268 Conn. 723, will facilitate our analysis. In that case, the plaintiff, the executrix of an estate, sought to recover damages against state employees for medical malpractice. Id., 725. The Claims Commissioner denied the claim as untimely, and the General Assembly subsequently authorized her claim via a special act. Id., 725–26. The state defendants again sought to dismiss the claim, this time on the ground that the special act was unconstitutional as an exclusive public emolument
In its analysis, our Supreme Court considered
In the present case, the plaintiff alleged in his complaint that Gagnon received his fees between August 24, 2007, and September 14, 2007. The trial court also examined the ‘‘chronology of events’’ submitted as part of the plaintiff’s objection to the defendants’ motion to dismiss that he filed with the Claims Commissioner. In that chronology, the plaintiff stated that in May, 2008, after examining the finances of state marshals, he determined that Gagnon never had claimed the $1329.20 in fees that he had billed the plaintiff. The plaintiff also noted that in May, 2008, after conducting his examination, he was aware that some state marshals ‘‘had generated additional income by illegal billing, or by claiming they performed services which would have been impossible considering the size of income claimed.’’
The trial court concluded that in May, 2008, the plaintiff discovered the injury and suffered actionable harm because he had knowledge of the specific facts that put him on notice of the nature of the injury with respect to Gagnon, and Bennett as well. We agree with this conclusion. Thus, the claim stemming from the
On appeal, the plaintiff argues that, pursuant to
B
We now turn to the question of whether the resolution passed by the General Assembly granting the plaintiff permission to bring suit against the marshals and the State Marshal Commission constituted an exclusive public emolument in violation of article first, § 1, of the Connecticut constitution.25 We agree with the trial court that the resolution did not serve a public purpose and, therefore, that the resolution was passed in violation of the Connecticut constitution’s prohibition against public emoluments.
‘‘To prevail under article first, § 1, of our constitution, 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.’’ (Citation omitted; emphasis altered; internal quotation marks omitted.) Kelly v. University of Connecticut Health Center, 290 Conn. 245, 257–59, 963 A.2d 1 (2009); Chotkowski v. State, 240 Conn. 246, 259–60, 690 A.2d 368 (1997); Merly v. State, supra, 211 Conn. 212–13.
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 individual.’’ (Internal quotation marks omitted.) Kelly v. University of Connecticut Health Center, supra, 290 Conn. 260. Although we are mindful of the heavy burden assumed by those who challenge the constitutionality of legislative actions; see id., 257; we conclude that the court properly determined that the resolution in the present case violated the state constitution’s prohibition against public emoluments, and correctly dismissed the § 1983 claim against the State Marshal Commission
III
We now address the plaintiff’s § 1983 allegations against Chief State’s Attorney Kevin T. Kane and State’s Attorney Scott J. Murphy for violating his constitutional rights by failing to prosecute the state marshals for larceny, illegal billing and making false statements, as set forth in count one of the complaint. The court concluded that a prosecutor’s decision not to initiate prosecution is cloaked with absolute immunity.27 On appeal, the plaintiff appears to argue that his claim against the two prosecutors was timely pursuant to the continuing course of conduct doctrine. We agree with the trial court that this claim fails as a result of absolute immunity afforded to prosecutors with respect to the decision to not initiate prosecution.
In Imbler v. Pachtman, 424 U.S. 409, 96 S. Ct. 984, 47 L. Ed. 2d 128 (1976), the United States Supreme Court held that a state prosecutor acting within the scope of his duties in initiating and pursuing a criminal prosecution is entitled to absolute immunity and is not amenable to suit under § 1983. Id., 410. The court reasoned that § 1983 should be read in harmony with existing tort principles and defenses, rather than in derogation of them, and that the well settled common law immunity of a prosecutor also applies to § 1983 claims. Id., 418–24; see also Briscoe v. LaHue, 460 U.S. 325, 334, 103 S. Ct. 1108, 75 L. Ed. 2d 96 (1983).
The Supreme Court has made it clear that not all actions of a prosecutor are entitled to such immunity, but only those that are ‘‘intimately associated with the judicial phase of the criminal process . . . .’’ Imbler v. Pachtman, supra, 424 U.S. 430; see also Mangiafico v. Blumenthal, 471 F.3d 391, 396 (2d Cir. 2006) (government attorney entitled to absolute immunity when functioning as advocate for state in way that is intimately associated with judicial process); Dory v. Ryan, 25 F.3d 81, 83 (2d Cir. 1994) (same). ‘‘A prosecutor’s administrative duties and those investigatory functions that do not relate to an advocate’s preparation for the initiation of a prosecution or for judicial proceedings are not entitled to absolute immunity.’’ Buckley v. Fitzsimmons, 509 U.S. 259, 273, 113 S. Ct. 2606, 125 L. Ed. 2d 209 (1993). When a prosecutor provides legal advice to the police; Burns v. Reed, 500 U.S. 478, 486, 111 S. Ct. 1934, 114 L.Ed. 2d 547 (1991); performs the investigative role normally done by a member of the police; Buckley v. Fitzsimmons, supra, 273; or makes comments to the media; id., 277–78; he or she is not entitled to absolute immunity. See also Haynesworth v. Miller, 820 F.2d 1245, 1268 (D.C. Cir. 1987) (‘‘[t]he courts have drawn rough boundaries around the class of absolutely-immunized prosecutorial activities, and have treated functions such as filing charges, plea-bargaining, presenting evidence, and negotiating parole as falling within the protected sphere, and those
In describing the role of a prosecutor in Connecticut, our Supreme Court has stated: ‘‘The functions of a state’s attorney are not purely those of an executive officer. As a representative of the people of the state, he is under a duty not solely to obtain convictions but, more importantly, (1) to determine that there is reasonable ground to proceed with a criminal charge . . . (2) to see that impartial justice is done the guilty as well as the innocent; and (3) to ensure that all evidence tending to aid in the ascertaining of the truth be laid before the court, whether it be consistent with the contention of the prosecution that the accused is guilty. . . . The state’s attorney, thus, is an officer charged with important duties and responsibilities in the administration of justice. Such duties of a state’s attorney are entirely consistent with judicial power as prescribed by our constitution.’’ (Citations omitted; internal quotation marks omitted.) Massameno v. Statewide Grievance Committee, 234 Conn. 539, 556–57, 663 A.2d 317 (1995). It also recognized: ‘‘It is in part due to the recognition that prosecutors are an integral part of the judicial system that courts have granted absolute immunity from civil actions to prosecutors. . . . Prosecutorial immunity derives from the immunity attached to judicial proceedings. . . . Such immunity covers acts that were performed by a prosecutor as an integral part of the judicial process.’’ (Citations omitted; internal quotation marks omitted.) Id., 567–68; see also Carrubba v. Moskowitz, 274 Conn. 533, 541, 877 A.2d 773 (2005); Barese v. Clark, 62 Conn. App. 58, 61, 773 A.2d 946 (2001) (‘‘Our Supreme Court, the United States Supreme Court and the federal courts of appeal have long recognized the existence of, and the need for, prosecutorial immunity. Such immunity exists to allow prosecutors at the state and federal level to be free to perform their essential role in the judicial process without the possibility of civil liability hanging over their head as a sword of Damocles.’’).
The remaining question, therefore, is whether the decision of Murphy and Kane not to prosecute the state marshals is cloaked with absolute immunity. We conclude that it is, and therefore, the court properly granted the motion to dismiss. As noted in Massameno v. Statewide Grievance Committee, supra, 234 Conn. 556–57, the determination of whether there are reasonable grounds to proceed with a criminal charge is a duty of a state’s attorney that is consistent with the judicial power prescribed by the Connecticut constitution. This function is an integral part of the judicial process, and thus is entitled to absolute immunity. Id., 567. We also note that the United States Court of Appeals for the Second Circuit expressly held in the Schloss v. Bouse, 876 F.2d 287, 290 (2d Cir. 1989), that ‘‘absolute immunity must also protect the [state] prosecutor from [42 U.S.C. § 1983] damages suits based on his decision not to prosecute.’’ (Emphasis in original.) See also Barrett v. United States, 798 F.2d 565, 572 (2d Cir. 1986) (federal prosecutor entitled to absolute immunity for decision not to prosecute); Dacey v. Dorsey, 568 F.2d 275, 276–78 (2d Cir.) (United States attorney absolutely immune from suit alleging he failed to carry out his duties), cert. denied, 436 U.S. 906, 98 S. Ct. 2238, 56 L. Ed. 2d 405 (1978). The Second Circuit reasoned that many, though not all, of the
IV
The plaintiff’s final claim is that the court improperly determined that he lacked standing to seek injunctive relief29 in the form of a court order eliminating the present marshal system and replacing it with a framework described in his complaint. The court concluded that the plaintiff had failed to allege or demonstrate that he was likely to suffer irreparable harm in the future as a result of improper conduct by state marshals and that, therefore, he lacked standing to bring a claim for injunctive relief. We agree with the trial court and therefore conclude that it properly granted the defendants’ motion to dismiss count six of the plaintiff’s complaint.30
‘‘[S]tanding is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he [or she] has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy. . . . Nevertheless, [s]tanding is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented. . . . If a party is found to lack standing, the court is without subject matter jurisdiction to determine the cause. . . . A determination regarding a trial court’s subject matter jurisdiction is a question of law. When . . . the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.’’ (Citation omitted; internal quotation marks omitted.) Fairchild Heights Residents Assn., Inc. v. Fairchild Heights, Inc., 310 Conn. 797, 820, 82 A.3d 602 (2014).
‘‘Standing requires no more than a colorable claim of injury; a [party] ordinarily establishes . . . standing by allegations of injury [that he or she has suffered or is likely to suffer]. Similarly, standing exists to attempt to vindicate arguably protected interests. . . . Standing is established by showing that the party claiming it is authorized by statute to bring suit or is classically aggrieved. . . . The fundamental test for determining
The court concluded that the plaintiff had failed to allege or demonstrate that he was likely to suffer irreparable harm and that he therefore lacked standing to bring a cause of action for prospective injunctive relief. After reviewing the plaintiff’s complaint, we agree with the analysis and conclusion of the trial court. The plaintiff has failed to establish, on a prospective basis, that he likely would be harmed as a result of illegal conduct by state marshals. Accordingly, we conclude that the court properly determined that the plaintiff lacked standing to bring a claim for injunctive relief as alleged in count six of the complaint.
The judgment is affirmed.
In this opinion the other judges concurred.
In its memorandum of decision, the court noted that ‘‘[i]n regard to the defendants’ . . . two arguments [regarding the use of a special act rather than a resolution and authorizing suit in the Superior Court], case law is demonstrably unclear as to whether the General Assembly must state its findings specifically in a ‘special act’ and whether the General Assembly has authority to allow claims to be submitted directly to the Superior Court.’’ Rather than deciding the case on these bases, the court instead focused on the constitutionality of the resolution under the public emolument analysis. We follow the path taken by the trial court with respect to this issue.
Notes
‘‘The State Marshal Commission generally meets monthly to conduct business under its statutory mandate. The Commission implements examination and appointment procedures as well as training for new appointees. By statutes, regulations and policies, the Commission also is involved in many functions, including but not limited to setting training requirements, professional standards, audit policies, disciplinary protocol, restraining order rotations and administrative procedures for the efficient and fair operation of the state marshal system.’’ (Emphasis added.) Department of Administrative Services, ‘‘State Marshal Commission,’’ available at http://das.ct.gov/cr1.aspx?page=107 (last visited May 6, 2014).