386531 v. Claud Chong (2014)

MEMORANDUM OF DECISION RE MOTION TO DISMISS

The plaintiff, Roman Kopiec, brought this action against Claud Chong, a public defender who represented the plaintiff, and the office of the public defender, alleging that Chong failed to provide adequate legal representation in the plaintiff's criminal case.   He seeks compensatory and punitive damages.   The defendants have moved to dismiss the action on the grounds that the action is barred by the state's sovereign immunity and by the statutory immunity afforded to state employees under General Statutes § 4–165.   For the reasons stated below, the motion to dismiss is granted.

I

Factual Background

The plaintiff is an inmate at Carl Robinson Correctional Institution.   Defendant Chong is a senior assistant public defender employed by the Office of the Public Defender.   The plaintiff sues both Chong and his employer for “legal malpractice, misprepresenation, neglect, diligence and competence, and confidentiality.”

On August 23, 2013, the defendants moved to dismiss pursuant to Practice Book §§ 10–30, 10–31, and 10–33.   On September 24, 2013, after the motion had appeared on the calendar, the plaintiff moved for a continuance of four weeks because he was possibly trying to obtain an attorney.   The motion hearing did not go forward on the calendar of September 30, 2013, as previously scheduled, but was reclaimed for the calendar on October 21, 2013, at which time the defendants asked that it be taken on the papers.   No attorney appeared for the plaintiff, and the plaintiff did not file a request for a further continuance or for oral argument.   See Practice Book § 11–18(a)(3).   Nor did the plaintiff file an objection to the motion to dismiss.   Accordingly, the court deems the motion to be submitted for decision on the papers.

II

Legal Standard

A motion to dismiss is properly used to challenge the court's jurisdiction.   Practice Book §§ 10–30, 10–31.  “A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.”   (Internal quotation marks omitted.)  Chief Information Officer v. Computers Plus Center, Inc., 310 Conn. 60, 79, 74 A.3d 1242 (2013).   Sovereign immunity relates to the court's subject matter jurisdiction.  Id. “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 ․ Exceptions to this doctrine are few and narrowly construed under our jurisprudence.”  (Emphasis in original;  internal quotation marks omitted.)   Id.

The legislature has established a statutory procedure for seeking a waiver of the state's sovereign immunity.   Unless otherwise expressly authorized by law, claims against the state and state agencies must be presented to the office of the claims commissioner, who may grant permission to sue in some circumstances.   See General Statutes §§ 4–141 et seq.

In addition to the long-recognized common law immunity of the state and officers and agents acting in their official capacity on its behalf, General Statutes § 4–165 affords statutory immunity from personal liability to state officers and employees for negligent actions occurring within the scope of their employment.  General Statutes § 4–165 provides in relevant part:

(a) 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.

(b) For the purposes of this section, (1) “scope of employment” includes but is not limited to, (A) representation by an attorney appointed by the Public Defender Services Commission as a public defender, assistant public defender or deputy assistant public defender or an attorney appointed by the court as Division of Public Defender Services assigned counsel of an indigent accused ․

The Supreme Court has articulated the standard to be applied to review of a motion to dismiss based on § 4–165.   When a trial court considers a jurisdictional question raised by a pretrial motion to dismiss, “it must consider the allegations in the complaint in their most favorable light.”   (Internal quotation marks omitted.)  Martin v. Brady, 261 Conn. 372, 376, 802 A.2d 814 (2002).   The court is to “examine the pleadings to decide if the plaintiff has alleged sufficient facts ․ with respect to personal immunity under § 4–165, to support a conclusion that the defendant[s] [were] acting outside the scope of [their] employment or wilfully or maliciously.”  (Citation omitted;  internal quotation marks omitted.)  Id.

III

Analysis

An examination of the complaint in this case discloses that all the allegations against defendant Chong are claims of professional negligence arising within the scope of Chong's employment by the office of the public defender.   The plaintiff alleges that Chong was employed by the office of public defender in New Britain and represented the plaintiff in a criminal proceeding.  (Complaint, paragraph 8.) He alleges that the defendants failed to advise him of his legal rights, including his Miranda rights (paragraph 1), the legality of evidence (paragraph 2), the invasion of his privacy rights by seizure of his bank records (paragraphs 3–4), the legality of his arrest (paragraph 5), and his due process rights regarding discovery of evidence or records that were illegally obtained and the reduction in his bond or his charges (paragraphs 6–8).   He alleges that Chong lacked necessary legal skills and “algebra skills” to represent him (paragraphs 9–10) and made unprofessional and insulting remarks to him (paragraph 11).   He alleges that, as a result, his sentence is harsh and prolonged in comparison to similar cases.  (Paragraph 10.)   He seeks a million dollars in damages.  (Page 1.)

All of these allegations relate to Chong's allegedly deficient defense of the plaintiff's criminal case, and thus all are clearly within the scope of Chong's employment as a public defender.   No wanton, reckless or malicious conduct is alleged;  the allegations sound in ordinary negligence and legal malpractice.   Accordingly, the defendant Chong is entitled to the statutory immunity of General Statutes § 4–165.   See Lemoine v. McCann, 40 Conn.App. 460, 673 A.2d 115 (1996) (holding that allegations sounding in legal malpractice are clearly within the scope of § 4–165's immunity).

Section 4–165(a) indicates that a person with a claim against a state employee covered by the section “shall present it as a claim against the state under the provisions of this chapter.”  Section 4–165 is in chapter 53 of the General Statutes, which also encompasses §§ 4–141 et seq., providing the procedure for asserting claims against the state through the office of the claims commissioner.   Because the complaint does not allege that the plaintiff has obtained permission to sue from the claims commissioner, sovereign immunity bars the plaintiff's claim against the office of the public defender and statutory immunity under § 4–165 bars the plaintiff's claim against Chong.   Accordingly, the motion to dismiss is granted.

BY THE COURT,

Sheila A. Huddleston, Judge

Huddleston, Sheila A., J.