Peter J. Avoletta et al. v. State of Connecticut (2013)

MEMORANDUM OF DECISION

Before the court is the defendant State of Connecticut's motion to dismiss the plaintiff's complaint for lack of subject matter jurisdiction.   For the reasons set forth herein, the motion is granted.

I. FACTUAL BACKGROUND

In their complaint, the plaintiffs allege that the defendant failed to provide Peter 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.   In 2003–04, Peter was diagnosed with irreversible lung disease from which he still suffers.   As a result, during the 2003–04 school year, Peter received homebound instruction from Torrington High School.   For the 2004–05 and 2005–06 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, it is alleged that prior to entering the Torrington Elementary School, he suffered allergies only to animals.   In October 1999, he was diagnosed with reactive airway disease, allergic rhinitis, sinusitis and asthma.   That same month he suffered pneumonia.   In December 1999, he was diagnosed with allergic rhinoconjunctivitis, asthma and with being “extremely reactive to multiple inhalants including tree, grass pollens, dust mites, and quite severely reactive to mold.”   In March 2003, Matthew was diagnosed with perennial/seasonal allergic rhinitis and asthma.   Matthew's physician recommended that the environment in the Middle School, to 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.

II. SUMMARY OF PROCEEDINGS

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 motion for summary judgment by the state, which included multiple grounds, the claims commissioner dismissed the claim, stating:  “This claim seeks to address matters occurring more than one year prior to the date of the filing ․ The Commissioner lacks subject matter jurisdiction.   The claim is dismissed because it was filed outside of the statutorily prescribed one-year time limit.”

Subsequently the plaintiffs, pursuant to General Statutes § 4–158, sought review of the claims commissioner's decision from the legislature, stating that the commissioner incorrectly ruled on their case.   The plaintiffs sought either a monetary award or the right to present a claim to the claims commissioner.   In the alternative, the plaintiffs sought a special act, pursuant to § 4–148(b), declaring that the despite the claim's untimeliness, the plaintiffs should be granted the right to sue the state.

On May 27, 2011 and June 8, 2011 respectively, the house and senate voted unanimously to approve House Joint Resolution 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 state argues that the joint resolution that gave the plaintiffs the right to sue was not done in accordance with proper legislative procedure.   The state further argues that, even if the resolution was validly executed, it is constitutionally infirm as a public emolument.

III. DISCUSSION

A. Motions to Dismiss Based on Sovereign Immunity

“A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction ․ 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.”   (Citations omitted;  internal quotation marks omitted.)  Dayner v. Archdiocese of Hartford, 301 Conn. 759, 774, 23 A.3d 1192 (2011).

“[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.)  Housatonic Railroad Co. v. Commissioner of Revenue Services, 301 Conn. 268, 274, 21 A.3d 759 (2011).  “The principle that the state cannot be sued without its consent, or sovereign immunity, is well established under our case law ․ [T]he practical and logical basis of the doctrine [of sovereign immunity] is today recognized to rest ․ on the hazard that the subjection of the state and federal governments to private litigation might constitute a serious interference with the performance of their functions and with their control over their respective instrumentalities, funds, and property ․ Exceptions to this doctrine are few and narrowly construed under our jurisprudence.”  (Citations omitted;  internal quotation marks omitted.)   Markley v. Dept. of Public Utility Control, 301 Conn. 56, 65, 23 A.3d 668 (2011).

“In the absence of a statutory waiver of sovereign immunity, the plaintiff may not bring an action against the state for monetary damages without authorization from the claims commissioner to do so.”  (Citations omitted;  internal quotation marks omitted.)   DiPietro v. Dept. of Public Safety, 126 Conn.App. 414, 418, 11 A.3d 1149, cert. granted on other grounds, 300 Conn. 932, 17 A.3d 69 (2011), appeal withdrawn, June 26, 2012.  “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 ․ This legislation expressly bars suits upon claims cognizable by the claims commissioner except as he may authorize, an indication of the legislative determination to preserve sovereign immunity as a defense to monetary claims against the state not sanctioned by the commissioner or other statutory provisions.”  (Internal quotation marks omitted.)  Cox v. Aiken, 278 Conn. 204, 212 n.11, 897 A.2d 71 (2006).   Even in cases where the claims commissioner denies or dismisses a claim, our statutes provide that the General Assembly may, in certain circumstances, provide the plaintiff such a right.   See General Statutes §§ 4–158, 4–159.

B. Necessity for a Special Act

The parties in the present case first dispute whether the joint resolution passed by the General Assembly granting the plaintiffs the right to sue the state is a valid exercise of legislative power.   The state argues that under General Statutes § 4–148(b), if the legislature seeks to grant a right to sue in a case where the plaintiff has not filed a notice with the claims commissioner within the statute of limitations prescribed by the statute, the legislature may only grant such permission by a special act in which the legislature specifically describes why the plaintiff is entitled to the right to sue.   Here, this was not accomplished.   The plaintiffs argue that the legislature was not acting pursuant to § 4–148(b), but rather § 4–159, which does not require a special act.

The threshold issue before the court is:  When the legislature vacates a decision of the claims commissioner to dismiss a claim because the claim is untimely, is the legislature required to pass a special act?

At the outset, the court notes the difference between a “resolution” and a “special act.”   A resolution is defined by the legislature as:  “[a] statement by the General Assembly that is not law.   Used to approve nominations or labor contract, place constitutional amendments on the ballot, or express the legislature's collection opinion.”   Rules and Precedents of the General Assembly of Connecticut (Rev. to January 9, 2013).

In comparison, a special act is defined as “[a] law that has a limited application or is of limited duration, not incorporated into the Connecticut General Statutes.”  Id. Practically speaking, the difference is that a special act must be signed by the governor demonstrating that it is more than merely expressing the legislature's collective opinion.

In determining what was required of the legislature in the present case, the court has reviewed the plaintiffs' submission to the legislature.   In their request for legislative review the plaintiffs asked for relief under multiple statutes.   The plaintiffs asked the legislature to find that the plaintiffs' claims were not time-barred and vacate the claims commissioner's decisions and either authorize payment to the plaintiffs or authorize them to bring suit in Superior Court.   This relief is sanctioned by § 4–159(b).  In the alternative, the plaintiffs prayed that even if the legislature found that the claims were time-barred, the legislature should enact a special act and allow the plaintiffs to resubmit their claims to the commissioner.   This relief is sanctioned by § 4–148(b).

If the legislature determined that the claims were untimely, its actions would be governed by § 4–148, which limits the jurisdiction of the claims commissioner by stating, in relevant part:  “(a) Except as provided in subsection (b) of this section, no claim shall be presented under this chapter but within one year after it accrues ․” As noted by the claims commissioner in the present case, such an untimely claim deprives the commissioner of subject matter jurisdiction.   However, § 4–148(b) provides that such a claim may be revived.   Specifically, the statute says, “(b) 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.   Such a finding shall not be subject to review by the Superior Court.”

It is of note that, when the legislature finds an action untimely, the plain language of the statute requires that (1) the legislature must act by special act and (2) the legislature may only allow the party to submit their claim to the claims commissioner.   Nothing in this statute allows the legislature to grant a right to sue where it concludes that the matter is untimely.   Because it can be assumed that the legislature is aware of the requirements of its own statute, the court concludes that the legislature did not intend to act under authority of § 4–148(b), because the legislature used a resolution and authorized the plaintiffs to file suit in Superior Court.   Therefore, while the resolution itself does not state the reasons for its passage and its legislative history also fails to illuminate the legislature's thinking on this issue, the necessary conclusion is that the legislature disagreed with the claims commissioner's legal conclusion as to the timeliness of the action.

When the legislature disagrees with the commissioner's decision to dismiss or deny a claim, the procedure for vacating such a decision is outlined in §§ 4–158, 4–159.  Section 4–158 states, in relevant part:  “Any person who has filed a claim for more than seven thousand five hundred dollars may request the General Assembly to review a decision of the Claims Commissioner (1) ordering the denial or dismissal of the claim pursuant to subdivision (1) of subsection (a) of this section, including denying or dismissing a claim that requests permission to sue the state ․” Section 4–459(b), states, in relevant part:  “The General Assembly shall:  (1) With respect to a decision of the Claims Commissioner ordering the denial or dismissal of a claim pursuant to subdivision (1) of subsection (a) of section 4–158:(A) Confirm the decision;  or (B) Vacate the decision and, in lieu thereof, (i) order the payment of the claim in a specified amount, or (ii) authorize the claimant to sue the state ․”

While the statute does not specifically state whether this must be accomplished by special act or resolution, it can be assumed that where the legislature requires itself to act in a particular way, it knows how to do this.   The court need look no further than § 4–148(b) to see that in certain circumstances, the legislature does require a special act.   To the extent that a plain reading of the statute does not clarify this issue, the court necessarily turns to the legislative history of § 4–159, which makes clear that the legislature may act either by resolution or special act.   Specifically, during the discussion of alterations to the statute, this issue was discussed with the legislature confirming that either method was acceptable.   See 32 H.R. Proc., Pt. 22, 1989, Sess., p. 7694.   Subsequently, an amendment was offered to require the legislature to act by special act.   Id., 7696.   The amendment was defeated.  Id., 7701.   Therefore, when reviewing the decision of the claims commissioner and granting the right to sue in Superior Court, the legislature may act either by resolution or special act.

Based on the foregoing the court concludes that, in the case of these plaintiffs, when presented with all of the procedural options before it, the legislature chose to grant the plaintiffs the right to sue under authority of § 4–159(b).  In doing so, the court must infer that the legislature found fault with the claims commissioner's legal conclusions, did not find the action untimely, and therefore did not need to pass a special act to grant the plaintiffs the right to sue.

This conclusion is supported by two recent Superior Court cases in which the court has entertained the validity of resolutions.   In Mourneau v. State, Superior Court, judicial district of Middlesex, Docket No. CV 12 5008157 (December 21, 2012, Domnarski, J.), the legislature acted in the same manner, passing a resolution and granting the plaintiff the right to sue after the claims commissioner had dismissed the matter.   The court entertained that resolution, though ultimately found it unconstitutional.   The same occurred in Brouillard v. State, Superior Court, judicial district of Middlesex, Docket No. CV 11 6004226 (June 4, 2012, Holzberg, J.).   In Brouillard, the court referred the legislature's action as a special act, but it is apparent that the authorization to sue was given via, “Resolution No. 101,” which was a joint resolution, not a special act.   As with Mourneau, the court in Brouillard ultimately found that the resolution was constitutionally infirm, but entertained the resolution as a proper method of granting the right to sue.

For the forgoing reasons, under the facts and circumstances of the present case, the legislature was within its rights to grant the right to sue via a joint resolution.

C. Public Emolument

The second issue before the court is:  Even though the legislature may vacate a decision of the claims commissioner to dismiss the matter by the passage of a resolution, is such a resolution constitutionally proscribed as a public emolument?

Article first, § 1, of our state constitution states, in relevant part:  “[N]o man or set of men are entitled to exclusive public emoluments or privileges from the community.”   In reviewing a case in which the legislature granted the right to present a claim to the claims commissioner via § 4–148(b), our Supreme Court noted that, even where the court ordinarily does not have a right to review the findings of the claims commissioner or legislature, the court must review the action for to ensure it is constitutionally sound.   As the Supreme Court stated, “ § 4–148(b) would be constitutionally infirm to the extent that it were construed to shield from judicial review a legislative determination that its enactment meets the requirements of article first, § 1, of our state constitution.”  Kinney v. State, 285 Conn. 700, 712, 941 A.2d 907 (2008).   The same is true of § 4–159.   This conclusion is supported by the previously mentioned Superior Court rulings of Mourneau v. State, supra, Superior Court, Docket No. 12 5008157 and Brouillard v. State, supra, Superior Court, Docket No. 11 6004226, both of which used the § 4–148(b) standard for constitutionality when ruling on resolutions analogous to the present case.

When reviewing the resolution the court notes that, “in order for the plaintiff to prevail, it is sufficient to show that her claim was not untimely as a matter of law;  in order for the defendant to prevail, we must determine that [the legislature's action] furthers no public purpose, which ․ necessarily is predicated upon a determination that the plaintiffs claim was untimely as a matter of law.”  (Citation omitted.)  Lagassey v. State, 268 Conn. 723, 736, 846 A.2d 831 (2004).   In other words, the court must first determine if the matter was untimely.   If the matter was not untimely, the plaintiffs will succeed in defeating the motion to dismiss because they will not have been granted a right unavailable to any other person.   If the matter was untimely, the court must then determine whether there was any public purpose for the legislature's action.   If there was not, the resolution will be ruled unconstitutional as violating article first, § 1.

Therefore the court must begin with a discussion of whether the action was untimely.  Section 4–148(a) state, in relevant part:  “[N]o claim shall be presented under this chapter 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 complained of.”   Our Supreme Court has stated:  “General Statutes § 52–584, which contains the limitation period for actions seeking damages for personal injury generally, informs our interpretation of § 4–148(a).  Section 52–584 provides in relevant part:  No action to recover damages for injury to the person ․ caused by negligence ․ or by malpractice of a physician, surgeon ․ [or] hospital ․ shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of ․ A plain reading of §§ 4–148(a) and 52–584 reveals that the statutes are alike in most material respects.   Both statutes provide that the limitation period begins to run when a plaintiff either sustains or discovers the injury or, in the exercise of reasonable care, should have discovered the injury, and both statutes contain a three year period of repose.   The only material differences in the two statutes are that § 4–148(a) allows for a one year limitation period while § 52–584 allows for a two year limitation period, and § 4–148(a) relates only to actions against the state brought under chapter 53 of the General Statutes ․

“Both §§ 4–184(a) and 52–584 state that the limitation period begins to run on the date when the plaintiff discovers or should have discovered the injury.   In this context, we have repeatedly stated that an injury occurs when a party suffers some form of actionable harm.”  (Citations omitted;  internal quotation marks omitted.)  Lagassey v. State, supra, 268 Conn. 738–39.   “[A]ctionable harm may occur when the plaintiff has knowledge of facts that would put a reasonable person on notice of the nature and extent of an injury, and that the injury was caused by the negligent conduct of another ․ In this regard, the harm complained of need not have reached its fullest manifestation in order for the limitation period to begin to run;  a party need only have suffered some form of actionable harm.”  (Emphasis in original;  internal quotation marks omitted.)  Kelly v. University of Connecticut Health Center, 290 Conn. 245, 254, 963 A.2d 1 (2009).

Here, the plaintiffs' claims are all based in the fact that Peter 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 2003–04 and attended private school thereafter.   Matthew attended private school from 2003–04 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), the state department of education and state office of protection and advocacy 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 state 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 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 state's failure to advise the plaintiffs of their rights in 2005, the 2007 filing with the claims commissioner was untimely.

The plaintiffs contend that the continuous course of conduct doctrine tolls the statute of limitations.   The plaintiffs reliance on this doctrine is misplaced.  “[T]he statute of limitations ․ may be tolled, in the proper circumstances, under either the continues course of conduct doctrine or the continuing treatment doctrine ․ The continuing course of conduct doctrine reflects the policy that, during an ongoing relationship, lawsuits are premature because specific tortious acts or omissions may be difficult to identify and may yet be remedied.”  (Citations omitted;  internal quotation marks omitted.)  Martinelli v. Fusi, 290 Conn. 347, 355–56, 963 A.2d 640 (2009).   However, “the continuing course of conduct doctrine has no application after the plaintiff has discovered the harm.”  (Internal quotation marks omitted.)  Mollica v. Toohey, 134 Conn.App. 607, 39 A.3d 1202 (2012).   Because the plaintiffs discovered the harm far more than one year prior to filing their action, the continuous course of conduct doctrine does not apply.

“Notwithstanding a claimant's failure to comply with the limitation period set forth in subsection (a), § 4–148(b) ․ allows the General Assembly to pass a special act authorizing an untimely claim if it finds ‘compelling equitable circumstances' and ‘public purpose.’   Although § 4–148(b) provides that ‘[s]uch finding shall not be subject to review by the Superior Court,’ special acts passed in this manner are subject to review nonetheless under the public emoluments clause contained in article first, § 1, of the state constitution.”  Lagassey v. State, supra, 268 Conn. 733.   In reviewing whether an act of the legislature is a public emolument, “[the court] must explore whether there is any conceivable justification for this challenged legislation from the public viewpoint.”  (Internal quotation marks omitted.)   Id., 735.

“[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].”  (Internal quotations marked omitted.)  Kelly v University of Connecticut Health Center, supra, 290 Conn. 258.

“Although [our Supreme Court has] taken a broad view of the legislative goals that may constitute a public purpose ․ [b]ecause the elements of a public purpose vary as much as the circumstance in which the term is appropriate, each case must be determined on its own peculiar facts ․ In general, however, we have found that an act serves a public purpose under article first, § 1, when it promote[s] the welfare of the state ․ or when the principal reason for the appropriation is to benefit the public ․ Furthermore, an enactment will be deemed to serve a valid public purpose, even though it confers a direct benefit upon a particular individual, if it remedies an injustice done to that individual for which the state itself bears responsibility ․ In such circumstances, the benefit conferred upon a private party by the legislature may be viewed as incidental to the overarching public interest that is served in remedying an injustice caused by the state.”  (Citations omitted;  internal quotation marks omitted).  Chotkowski v. State, 240 Conn. 246, 259–60, 690 A.2d 368 (1997).

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 § 4–148(b) to send the matter back to the commissioner for further proceedings.

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.   On March 21, 2011, the plaintiff, Joanne Avoletta, testified before the judiciary committee seeking a reversal of the claims commissioner's decision based on the ground that new case law aided her cause.   See Conn. Joint Standing Committee Hearings, Judiciary, Pt. 11, 2011 Sess., pp. 3295–97.   The plaintiff also submitted a written letter and a letter from her attorney.   Id., pp. 3551–55.   Nowhere in this testimony is there any discussion of the statute of limitations issue.   The joint favorable report of the judiciary committee summarized the testimony and noted that the legislature should vacate the commissioner's decision without offering further support for this decision.   See Judiciary Committee Joint Favorable Report, concerning House Joint Resolution No. 11–34, entitled Resolution Concerning the Disposition of Certain Claims Against the State Pursuant to Chapter 53 of the General Statutes.   Discussion of the joint resolution was held on May 27, 2011 in the House of Representatives and on June 8, 2011 in the Senate.   See 54 H.R. Proc., Pt. 16, 2011 Sess., p. 5410–13;  54 S. Proc. Pt. 22, 2011 Sess. p. 7038, 7176–78, 7182–83.   On neither occasion was there any specific discussion of the plaintiffs' claims or the reasons for which the commissioner's decision would be vacated or stated any way in which these plaintiffs had been prejudiced by the government in such a way that they should be exempt from the ordinary statute of limitations.

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 § 4–148(b) without any explanation or public purpose, constitutes a public emolument when the action is untimely.

IV. CONCLUSION

For the foregoing reasons, the motion to dismiss is granted.

BY THE COURT,

Sheridan, J.

Sheridan, David M., J.