Gary D'Amato v. Andrew McDonald et al. (2010)

RE MOTION TO DISMISS (# 102) and MOTION TO DISMISS (# 104)

FACTS

On December 7, 2009, the self-represented plaintiff, Gary D'Amato, commenced this action against the defendants, Andrew McDonald, individually and in his official capacity as state senator;  Linda Yelmini, individually and in her official capacity as director of the state office of labor relations;  and Michael Lawlor, individually and in his official capacity as state representative.   In the complaint, the plaintiff alleges that the defendants engaged in a “[d]eliberate wanton failure to investigate the felonious, obstruction of justice by our state police ․ [and that such] deliberate wanton malfeasance misconduct [was] above and beyond all scopes of their employment ․” The plaintiff further asserts that the “defendants are and were in the sworn ethical oath to investigate deter not ignore the deliberate wanton actions before them as sworn officials.”   The plaintiff requests three million dollars in punitive and compensatory damages and fifteen thousand dollars in attorneys fees and costs.

On January 6, 2010, Yelmini filed a motion to dismiss the plaintiff's complaint and a memorandum of law in support of the motion to dismiss for lack of subject matter jurisdiction based on sovereign immunity and statutory immunity of state officers and employees.   Similarly, on January 6, 2010, McDonald and Lawlor filed a motion to dismiss the plaintiff's complaint and a memorandum of law in support of the motion to dismiss for lack of subject matter jurisdiction based on sovereign immunity, statutory immunity of state officers and employees, and legislative immunity.

The plaintiff did not file a memorandum of law objecting to the defendants' motions to dismiss.

The matter was heard on the short calendar on July 26, 2010.

DISCUSSION

I LEGAL STANDARD

“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.”  (Internal quotation marks omitted.)  Bacon Construction Co. v. Dept. of Public Works, 294 Conn. 695, 706, 987 A.2d 348 (2010).  “A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.”   (Internal quotation marks omitted.)  Wilcox v. Webster Ins., Inc., 294 Conn. 206, 213, 982 A.2d 1053 (2009).

“Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction.”  St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003).  “[T]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss.”  (Internal quotation marks omitted.)  Bacon Construction Co. v. Dept. of Public Works, supra, 294 Conn. 706.  “Claims involving the doctrines of common-law sovereign immunity and statutory immunity, pursuant to [General Statutes] § 4-165, implicate the court's subject matter jurisdiction.”  (Internal quotation marks omitted.)  Kelly v. Albertsen, 114 Conn.App. 600, 605, 970 A.2d 787 (2009).   Accordingly, “a motion to dismiss is the appropriate procedural vehicle to raise a claim that sovereign immunity [or statutory immunity] bars the action.”  (Internal quotation marks omitted.)  Manifold v. Ragaglia, 94 Conn.App. 103, 116, 891 A.2d 106 (2006).

“[T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n.12, 829 A.2d 801 (2003).  “[I]t is the burden of the party who seeks the exercise of jurisdiction in his favor ․ clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute.”  (Internal quotation marks omitted.)  Wilcox v. Webster Ins., Inc., supra, 294 Conn. 213-14.  “It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.”  (Internal quotation marks omitted.)  Id., 214.

“When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, 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.”  (Internal quotation marks omitted.)   Conboy v. State, 292 Conn. 642, 651, 974 A.2d 669 (2009).

“In the absence of any objection by the defendant on [the] basis [that the plaintiffs did not file a memorandum of law objecting to the defendant's motion to dismiss], or any appellate case law making such a filing mandatory, this oversight by the plaintiffs is not fatal to their claims.”  Fennelly v. Norton, 103 Conn.App. 125, 146-47 n.4, 931 A.2d 269, cert. denied, 284 Conn. 918, 931 A.2d 936 (2007).

II PARTIES' ARGUMENTS

First, Yelmini argues that the court lacks subject matter jurisdiction based on the doctrine of sovereign immunity.   Specifically, Yelmini asserts that the plaintiff's claim is against the state for monetary damages and that the state is immune from monetary suit unless it consents to be sued.   If the state does not waive its sovereign immunity, then the plaintiff is required to bring his claim before the claims commissioner for either an award of damages or for permission to sue pursuant to General Statutes § 4-142.   Second, Yelmini argues that the court lacks subject matter jurisdiction because, pursuant to General Statutes § 4-165, state officers and employees are statutorily immune from personal liability.

In addition to echoing Yelmini's arguments, McDonald and Lawlor argue that the plaintiff's suit is barred by legislative immunity as provided by Connecticut's speech and debate clause, article third, § 15 of the Connecticut Constitution.

III LEGAL ANALYSIS

A. Sovereign Immunity

“That a sovereign state is immune from suit, unless it consents to be sued, is the settled law of Connecticut.”  Lacasse v. Burns, 214 Conn. 464, 468, 572 A.2d 357 (1990).  “[B]ecause 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.”  (Internal quotation marks omitted.)  Columbia Air Services, Inc. v. Dept. of Transportation, 293 Conn. 342, 349, 977 A.2d 636 (2009).

“[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.”  (Citations omitted;  internal quotation marks omitted.)  Id. “For a claim made pursuant to the first exception, [the] 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 ․ For a claim made pursuant to the second exception, complaining of unconstitutional acts, [the court requires] that [t]he allegations of such a complaint and the factual underpinnings if placed in issue, must clearly demonstrate an incursion upon constitutionally protected interests ․ For a claim under the third exception, the plaintiffs must do more than allege that the defendants' conduct was in excess of their statutory authority;  they also must allege or otherwise establish facts that reasonably support those allegations ․ 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.”   (Citations omitted;  internal quotation marks omitted.)  Id., 349-50.   The second and third exceptions do not apply to actions seeking monetary damages against the state.  Miller v. Egan, 265 Conn. 301, 321, 828 A.2d 549 (2003).   Consequently, a plaintiff seeking monetary damages from the state must demonstrate that the state has statutorily waived sovereign immunity.   See id.

In the absence of a statutory waiver of sovereign immunity, a plaintiff seeking monetary damages from the state must file a claim with the claims commissioner pursuant to General Statutes § 4-142.  Miller v. Egan, supra, 265 Conn. 317.  “When sovereign immunity has not been waived, the claims commissioner is authorized by statute to hear monetary claims against the state and determine whether the claimant has a cognizable claim.”  Krozser v. New Haven, 212 Conn. 415, 421, 562 A.2d 1080 (1989), cert. denied, 493 U.S. 1036, 110 S.Ct. 757, 107 L.Ed.2d 774 (1990);  see General Statutes § 4-142.  “The claims 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.’  “ Krozser v. New Haven, supra, 421;  see General Statutes § 4-160(a).

In the present case, the plaintiff is seeking monetary damages against the state.   Thus, the plaintiff must demonstrate that the state has statutorily waived sovereign immunity.   The plaintiff, however, failed to provide any relevant authority that purports to waive the state's sovereign immunity.   Consequently, in the absence of waiver, to seek monetary damages from the state, the plaintiff was required to bring his claim before the claims commissioner pursuant to General Statutes §§ 4-142 and 4-160(a).   At the hearing on the motions to dismiss, the plaintiff stated that he sought authorization from the claims commissioner to bring suit against the state but that he never received a response.   The plaintiff, however, did not provide any evidence to substantiate this assertion.   Thus, the plaintiff has failed to prove either a statutory waiver of sovereign immunity or that he obtained permission from the claims commissioner to bring suit against the state.   Therefore, the court grants the defendants' motions to dismiss the plaintiff's complaint against the state on the ground that the court lacks subject matter jurisdiction based on sovereign immunity.

B. Statutory Immunity

In general, officers and employees of the state are immune from personal liability pursuant to General Statutes § 4-165, which provides, in relevant part:  “No state officer or employee shall be personally liable for damage or injury, not wanton, reckless or malicious, caused in the discharge of his or her duties or within the scope of his or her employment.   Any person having a complaint for such damage or injury shall present it as a claim against the state under the provisions of this chapter.”  “[T]o overcome the statutory immunity of General Statutes § 4-165 for employees of the state who are sued in their individual capacity, the plaintiff must allege sufficient facts to support a conclusion that the defendant was acting outside the scope of his employment or was acting wilfully or maliciously.”  Kelly v. Albertsen, supra, 114 Conn.App. 604-05.

“In applying [General Statutes] § 4-165, our Supreme Court has understood ‘wanton, reckless or malicious' to have the same meaning as it does in the common-law context ․ Under the common law, [i]n order to establish that the defendants' conduct was wanton, reckless, wilful, intentional and malicious, the plaintiff must prove, on the part of the defendants, the existence of a state of consciousness with reference to the consequences of one's acts ․ [Such conduct] is more than negligence, more than gross negligence ․ [I]n order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them ․ It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action ․ [In sum, such] conduct tends to take on the aspect of highly unreasonable conduct, involving extreme departure from ordinary care, in a situation where a high degree of danger is apparent.”   (Citations omitted;  internal quotation marks omitted.)  Manifold v. Ragaglia, 102 Conn.App. 315, 324, 926 A.2d 38 (2007).

In the present case, the plaintiff's complaint is devoid of sufficient facts to support a conclusion that the defendants were acting outside the scope of their employment or in a wanton, reckless or malicious manner.   Rather, the plaintiff merely alleges that the defendants engaged in a “[d]eliberate wanton failure to investigate the felonious, obstruction of justice by our state police ․ [and that such] deliberate wanton malfeasance misconduct [was] above and beyond all scopes of their employment ․” The plaintiff further asserts that the “defendants are and were in the sworn ethical oath to investigate deter not ignore the deliberate wanton actions before them as sworn officials.”   The plaintiff, however, did not provide any facts to support his conclusion that the defendants acted in a wanton, reckless or malicious manner or outside the scope of their employment, as is required to circumvent the immunity granted to state officers and employees.   As such, the court grants the defendants' motions to dismiss to the plaintiff's claim against the defendants in their individual capacities on the ground that the court lacks subject matter jurisdiction based on statutory immunity.

C. Legislative Immunity

Connecticut's speech or debate clause provides:  “The senators and representatives shall, in all cases of civil process, be privileged from arrest, during any session of the general assembly, and for four days before the commencement and after the termination of any session thereof.   And for any speech or debate in either house, they shall not be questioned in any other place.”   Conn. Const., art.   III, § 15.   The court, in interpreting the speech or debate clause of the Connecticut constitution, which “closely resembles the speech or debate clause ․ of the constitution of the United States,” is guided by the “interpretation afforded the federal speech or debate clause by the federal courts.”  Office of the Governor v. Select Committee of Inquiry, 271 Conn. 540, 560, 858 A.2d 709 (2004).

Consistent with the federal courts' interpretation of the speech or debate clause of the constitution of the United States, Connecticut's speech or debate “clause has been construed to provide protection against civil as well as criminal actions, and against actions brought by private individuals as well as those initiated by the Executive Branch ․ Moreover, the immunity conferred by the ․ speech or debate clause has been held to consist of not just immunity from liability, but immunity from suit.”  (Citation omitted;  internal quotation marks omitted.)  Id., 561-62.  “The ․ speech or debate clause has not be construed, however, as a limitless conferral of absolute immunity.”  Id., 562.   Rather, “the immunity conferred by the ․ speech or debate clause is limited to conduct occurring ‘within the sphere of legitimate legislative activity.’  ․ In determining whether particular activities other than literal speech or debate fall within the legitimate legislative sphere ․ [the court] must determine whether the activities are an integral part of the deliberative and communicative processes by which [m]embers participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the constitution places within the jurisdiction of either House.”  (Citations omitted;  internal quotation marks omitted.)   Id., 563-64.

“[O]nce it is determined that members [of the legislature] are acting within the ‘legitimate legislative sphere’ the ․ [speech or debate] [c]lause is an absolute bar to interference” by the courts.  Id., 563, citing Eastland v. United States Servicemen's Fund, 421 U.S. 491, 503, 95 S.Ct. 1813, 44 L.Ed.2d 324 (1975).   Thus, when the court is presented with a motion to dismiss based on legislative immunity under Connecticut's speech or debate clause, the court must first determine whether the defendant's alleged conduct falls within the legitimate legislative sphere.   D'Amato v. Government Administration & Elections Committee, Superior Court, judicial district of Hartford, Docket No. CV 05 4012032 (March 9, 2006, Freed, J.T.R.) [41 Conn. L. Rptr. 82].   If the “court concludes that the defendants were acting within the sphere of legitimate legislative activity, then ․ [the] court lacks subject matter jurisdiction over the plaintiffs' claims ․ because the defendants are absolutely immune from judicial review of their activity under the speech or debate clause ․ of the constitution of Connecticut.”  Id.

In the present case, the plaintiff brought suit against McDonald in his official capacity as state senator and against Lawlor in his official capacity as state representative.   In the complaint, the plaintiff alleges that the “defendants are and were in the sworn ethical oath to investigate deter not ignore the deliberate wanton actions before them as sworn officials ․ [and the defendants] and other leaders of this State sworn to oaths to Protect and Serve had failed to many requests, demands to investigate these misjustices and obstructions of justice due process rights violations ․” The plaintiff's complaint essentially alleges that McDonald and Lawlor had an obligation to carry out a duty, as state legislators, to investigate alleged ethical complaints and that each failed to do so.   In claiming that the alleged duty owed by McDonald and Lawlor arises from their “sworn ethical oath to investigate ․ actions before them as sworn officials,” the plaintiff, therefore, is asserting that the basis for the alleged duty arises from the legislative functions of McDonald and Lawlor.   Such a claim is precisely what the legislative immunity afforded by the speech or debate clause was intended to prevent.   Consequently, because McDonald and Lawlor were acting within the sphere of legitimate legislative activity, the court lacks subject matter jurisdiction over the plaintiff's claim.   Thus, the court grants the defendants' motion to dismiss the plaintiff's claim against the defendants in their capacities as state legislators on the ground that the court lacks subject matter jurisdiction based on legislative immunity.

CONCLUSION

The court grants the defendants' motions to dismiss the plaintiff's complaint on the ground that the court lacks subject matter jurisdiction over the defendants based on sovereign immunity, statutory immunity of state officers and employees, and legislative immunity.

Marano, J.

Marano, Richard M., J.