Opinion
No. HHB CV 10 6007570 S
March 21, 2011
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO DISMISS
BACKGROUND:
The plaintiff, Jacek I. Smigelski is an attorney. The defendant, Mark A. Dubois is the Chief Disciplinary Counsel for the State of Connecticut. On November 28, 2008, upon the order of the Statewide Grievance Committee, the disciplinary counsel brought a presentment action against the plaintiff, alleging violation of several rules of professional conduct. Following trial on the merits, on August 31, 2009, the court (Pittman, J.) found Smigelski committed professional misconduct in representing the interests of the executor of an estate, Stanley Kosiorek. The court suspended Smigelski from the practice of law for a period of fifteen months. Disciplinary Counsel v. Jacek Smigelski, Superior Court, judicial district of New Britain, Docket No. HHB CV 08 4019323 (August 31, 2009, Pittman, J.). One of the court's findings was that Smigelski's use of an estimated sales price of real estate in the amount of $257,000 as a basis for the calculation of his fee was objectively and subjectively unreasonable. Smigelski's appeal to the appellate court was unsuccessful. Disciplinary Counsel v. Smigelski, 124 Conn. App. 81, 4 A.3d 336 (2010), cert. denied, 300 Conn. 906 (2011).
In October, 2010, Kosiorek successfully sued Smigelski as to Smigelski's conduct in representing him and the interests of the estate.
Following the loss of his appeal of the presentment trial and his loss in the action brought by Kosiorek, Smigelski filed this present "Complaint for a New Trial." In this complaint, Smigelski claims that, in Kosiorek's trial, "it was accidentally discovered" that a real estate appraisal was done, assessing the value of the property to be $254,000. Smigelski alleges that Kosiorek intentionally failed to disclose the appraisal to various persons, including the grievance panel, the reviewing committee [presumably the Statewide Grievance Committee] and himself.
Smigelski alleges that the disciplinary counsel knew or should have known about this appraisal, but negligently or intentionally failed to disclose the appraisal to the grievance panel, the reviewing committee, the court or himself. Inconsistently, Smigelski alleges that the disciplinary counsel brought up the existence of the appraisal during the presentment trial, which occurred in 2009. He offers no explanation as to how the appraisal was "accidentally discovered" in the October 2010 trial when it was allegedly raised by the disciplinary counsel in the 2009 presentment.
Defendant Dubois was not the disciplinary counsel prosecuting the presentment. It was Attorney Suzanne Sutton. Attorney Sutton is not a defendant to this action.
Smigelski further alleges that Kosiorek committed perjury at the presentment trial, in testifying that there was another appraisal which valued the property at $170,000. Smigelski also asserts that Kosiorek's testimony "was fraudulent, intentionally false, and a material misrepresentation of a material fact, or an outright fraud committed on the court, and the original grievance panel, and the reviewing committee."
As to defendant Dubois, Smigelski claims disciplinary counsel knew or should have known of the $254,000 appraisal and was under a duty to disclose exculpatory information. Smigelski then asserts that because there was an appraisal that was close in value to his asserted value of the property, "the judgment of the panel, the reviewing committee and of this court would have been different had the panel, the reviewing committee and this court known the truth."
A review of the Judge Pittman's memorandum of decision shows that the testimony of Kosiorek about the appraisal amount was not the basis of the findings that Smigelski violated the Rules of Professional Conduct. Rather, the court specifically found the valuation of $257,000.00 claimed by Smigelski as the basis for his fee "to be objectively and subjectively unreasonable in light of the actual sales price for the real estate approved in 2006 by the Probate Court with the active participation of the respondent [Smigelski] who ultimately performed work on the closing." Disciplinary Counsel v. Jacek Smigelski, supra. The merits of this "complaint for new trial," however, are not at issue at this time. At this stage, the court is merely considering the issue of subject matter jurisdiction.
Smigelski, in his present action, seeks to have the former judgment of the presentment set aside for a new trial or that the charges against him be dismissed.
Dubois has filed a motion to dismiss on three grounds: (1) the defendant is protected by the doctrine of (absolute) judicial immunity; (2) the complaint fails to assert a claim recognized in disciplinary proceedings; and (3) the complaint is non-justiciable in that it will not result in practical relief to the plaintiff. Smigelski filed a memorandum of law in opposition to the motion to dismiss, arguing that Dubois is not afforded judicial immunity because Smigelski is not seeking civil or monetary liability from him and that the action seeks a new trial pursuant to General Statutes § 52-270. Oral argument was presented by both sides.
Section 52-270 states: (a) The Superior Court may grant a new trial of any action that may come before it, for mispleading, the discovery of new evidence or want of actual notice of the action to any defendant or of a reasonable opportunity to appear and defend, when a just defense in whole or part existed, or the want of actual notice to any plaintiff of the entry of a nonsuit for failure to appear at trial or dismissal for failure to prosecute with reasonable diligence, or for other reasonable cause, according to the usual rules in such cases. The judges of the Superior Court may in addition provide by rule for the granting of new trials upon prompt request in cases where the parties or their counsel have not adequately protected their rights during the original trial of an action.
(b) An affidavit signed by any party or his or her attorney shall be presumptive evidence of want of actual notice.
LEGAL 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." (Internal quotation marks omitted.) Cox v. Aiken, 278 Conn. 204, 210-11, 897 A.2d 71 (2006).
The standard governing a trial court's review of a motion to dismiss is well established. "In ruling upon whether a complaint survives a motion to dismiss, 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.) Brennan v. Fairfield, 58 Conn.App. 191, 195, 753 A.2d 396 (2000).
Sovereign immunity implicates subject matter jurisdiction. Cox v. Aiken, 278 Conn. 204, 211, 897 A.2d 71 (2006). "Jurisdiction of the subject-matter is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong." (Citations omitted; internal quotation marks omitted.) Doe v. Roe, 246 Conn. 652, 661, 717 A.2d 706 (1998). "A claim that [the] court lacks subject matter jurisdiction [may be raised] at any time." (Internal quotation marks omitted.) Dowling v. Slotnik, 244 Conn. 781, 787, 712 A.2d 396 (1998). "Once the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented . . . and the court must fully resolve it before proceeding further with the case." (Citations omitted; internal quotation marks omitted.) Figueroa v. C S Ball Bearing, 237 Conn. 1, 4, 675 A.2d 845 (1996). "The plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." Fink v. Golenbock, 238 Conn. 183, 199 n. 13, 680 A.2d 1243 (1996).
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. If the defendant submits no proof to rebut the plaintiff's jurisdictional allegations, the plaintiff need not supply evidence to support the complaint, but may rest on the jurisdictional allegations therein. Conboy v. State, 292 Conn. 642, 651-52, 974 A.2d 669 (2009).
ANALYSIS: I. Absolute Immunity
Dubois is the chief disciplinary counsel. Pursuant to § 2-34A (a), the chief disciplinary counsel is appointed by the judges of the superior court, is assigned to the office of the chief court administrator and performs functions set forth by the superior court judges as set forth in Practice Book § 2-34A (b). Dubois claims absolute immunity pursuant to General Statutes § 4-165. When it applies, absolute immunity bars a civil lawsuit, "even if it leaves the genuinely wronged defendant without civil redress against a prosecutor whose malicious or dishonest actions deprives him of liberty." Imbler v. Pachtman, 424 U.S. 409, 431, 96 S. Ct. 984, 47 L.Ed.2d 128 (1976). The issue is whether absolute immunity applies.
§ 4-165(a) states, "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 [Chapter 53, Claims Against the State]."
Smigelski does not contest that Dubois, as chief disciplinary counsel, is a state employee. Smigelski asserts that § 4-165 is not applicable because his action does not seek liability against Dubois, monetary or otherwise. This is reflected in his demand for relief, in which he claims relief other than money damages, specifically a new trial or dismissal of charges. As § 4-165 provides immunity from personal liability, but not for the relief sought by Smigelski, Dubois' claim of absolute immunity based upon this statute must fail.
As § 4-165 does not confer upon Dubois absolute immunity for the claim for relief asserted in this action, the court next considers whether absolute immunity is afforded elsewhere. Dubois cites the Florida case of Cole v. Sankel, 766 So.2d 287 (Fla. 4th DCA 2000), in which the Florida appellate court noted that staff attorneys of the Florida bar as duly authorized agents of the Florida bar have absolute immunity. However, the court also noted that the appellant was pursuing, among other claims, tort claims against the appellees. That is not the situation here.
In Foreman v. Ours, 804 F.Sup. 864 (S.D. La 1992), aff'd, 996 F.2d 306 (CA 5 1993), another case cited by Dubois, the Disciplinary Board of the Louisiana State Bar Association was held to enjoy absolute immunity from the plaintiffs 42 U.S.C. § 1983 claim for damages. Id. at 868. Again, that was a claim for damages asserted against the Disciplinary Board. Of note in that case is the court's citation of the doctrine of Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), which limits relief that can be demanded from a state officer. Such an official can be enjoined from performing an act, but he cannot be required to pay damages because any money awarded would amount to a levy of money from the state treasury. Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974) (reh'g denied). Smigelski does not seek damages.
Dubois cites Noffsinger v. Nebraska State Bar Ass'n, 622 N.W.2d 620 (Neb. 2001), and other cases for the proposition that prosecutorial decisions must be made without fear of retaliatory action from parties. Id. at 625. Personal retaliation does not appear to be the relief sought. While Smigelski has made allegations against Dubois which are not complementary, he is not seeking retaliatory relief. He seeks a new trial or dismissal of the charges. The chilling effect of actions against prosecutors and other court officials in for their prosecutorial and judicial decision making is inapplicable where the relief sought is not damages. Rather, this is akin to actions against the state for new trials and habeas petitions against the commissioner of corrections by criminal defendants.
Absolute immunity is strong medicine. Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 631, 749 A.2d 630 (2000). The court finds that Dubois does not enjoy absolute immunity as to the claims asserted by Smigelski.
Although sovereign immunity is not raised by the defendant, if such immunity were afforded Dubois, this would impact the subject matter jurisdiction of this court. Therefore, the court addresses this issue as well.
There are three exceptions to the doctrine of sovereign immunity: "(1) when the legislature, either expressly or by force of a necessary implication, statutorily waives the state's sovereign immunity, Martinez v. Dept. of Public Safety, 263 Conn. 74, 85-86, 818 A.2d 758 (2003); (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 plaintiffs constitutional rights, Doe v. Heintz, 204 Conn. 17, 31, 526 A.2d 1318 (1987); 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. Antinerella v. Rioux, 229 Conn. 479, 497, 642 A.2d 699 (1994), overruled in part, Miller v. Egan, 265 Conn. 301, 325, 828 A.2d 549 (2003)." Tuchman v. State, 89 Conn.App. 745, 753, 878 A.2d 384, cert. denied, 275 Conn. 920, 883 A.2d 1252 (2005).
Smigelski in his complaint for a new trial, claims violation of his rights of due process pursuant to U.S. Const., amend. XIV and Conn. Const. art. I, § 8. This claim invokes the second exception to the doctrine of sovereign immunity.
II. Cognizability of Claim
Dubois asserts that the court lacks subject matter jurisdiction over the claim of Smigelski as the presentment was neither civil nor criminal but sui generis. Burton v. Mottolese, 267 Conn. 1, 26, cert. denied, 541 U.S. 1073, 124 S.Ct. 2422, 158 L.Ed.2d 983 (2004). This is not disputed by Smigelski. Dubois argues that there is no statutory or practice book provision allowing for a petition for new trial in, or ancillary to a disciplinary proceeding: "There is no recognized cause of action for a new trial based upon `accidentally discovered' evidence, not is there any legal duty imposed upon the Defendant to disclose exculpatory evidence." The first assertion is properly the subject of a motion to strike. The latter assertion goes to the merits of the action and is not properly asserted in a motion to dismiss.
There is no recognized common law ground for the plaintiff's complaint, nor does Smigelski assert such a claim in his memorandum of law in opposition to the motion to dismiss. Rather, for the first time, in that memorandum, Smigelski asserts that his complaint is authorized by General Statutes § 52-570.
Practice Book § 10-3(a) requires that, "[w]hen any claim made in a complaint . . . is grounded on a statute, the statute shall be specifically identified by its number." Smigelski has failed to comply with Practice Book § 10-3(a). "Although a plaintiff generally is required to identify specifically any statute on which a particular action is grounded; see Practice Book § 10-3(a); `our courts repeatedly have recognized that [this rule] is directory and not mandatory.' (Internal quotation marks omitted.) Burton v. Stamford, 115 Conn.App. 47, 65, 971 A.2d 739, cert. denied, 293 Conn. 912, 978 A.2d 1108 (2009). The plaintiff is not barred from recovery thereby as long as the defendant sufficiently was apprised of the nature of the action. Spears v. Garcia, 66 Conn.App. 669, 676, 785 A.2d 1181 (2001), aff'd, 263 Conn. 22, 818 A.2d 37 (2003); see also Caruso v. Bridgeport, 285 Conn. 618, 629, 941 A.2d 266 (2008) (`[t]he critical consideration under § 10-3[a] . . . is whether the [defendant was] on notice of the statutory basis for the plaintiffs claims'). Brewster Park v. Berger, 126 Conn.App. 630 (2011). Smigelski's failure to comply with Practice Book § 10-3(a) is not fatal to the complaint.
General Statutes § 52-570 provides the superior court authority to "grant a new trial of any action that may come before it, mispleading, the discovery of new evidence or want of actual notice of the action to any defendant or of a reasonable opportunity to appear and defend, when a just defense in whole or part existed, or the want of actual notice to any plaintiff of the entry of a nonsuit for failure to appear at trial or dismissal for failure to prosecute with reasonable diligence, or for other reasonable cause, according to the usual rules in such cases. Smigelski does not specify in his memorandum under which of these circumstances he has filed his complaint. The only one which corresponds to the allegations of his complaint is that of the discovery of new evidence.
Smigelski asserts in his complaint for new trial that, in a subsequent action, "it was accidentally discovered" that a full real estate appraisal was done on the subject premises. 100.31, Complaint, ¶ 7.
Inconsistently, Smigelski further alleges that disciplinary counsel brought up the existence of that appraisal during redirect examination of Kosiorek during the presentment trial. 100.31, Complaint, ¶ 9. Smigelski has attached a copy of the transcript of this redirect examination as an exhibit to his complaint. 101.00, Exhibits, Exhibit G.
At this stage of the action, the court is not analyzing the legal sufficiency of Smigelski's claims. Rather, the court is determining if it has subject matter jurisdiction. The defendant's assertion that the complaint "fails to assert a claim recognized in disciplinary proceedings" would be the subject for a motion to strike as to legal insufficiency, not a motion to dismiss as to subject matter jurisdiction. "[A] motion to dismiss is not designed to test the legal sufficiency of a complaint in terms of whether it states a cause of action. That should be done, instead, by a motion to strike." Pratt v. Old Saybrook, 225 Conn. 177, 185, 621 A.2d 1322 (1993).
§ 52-270 provides the court with subject matter jurisdiction when the court reads the allegations of the complaint in the light most favorable to the plaintiff. Notwithstanding that the plaintiff has contradicted himself within a matter of three paragraphs of his complaint, 100.31, Complaint, ¶ 7, ¶ 9, the 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. Conboy v. State, supra, 292 Conn. 642, 651, 974 A.2d 669 (2009). Therefore, dismissal on this basis is improper.
III. Justiciability
The third basis for the motion to dismiss asserted by Dubois is that the action is not justiciable because Dubois cannot give the plaintiff the remedies he seeks. Smigelski seeks a new trial or dismissal of the charges.
"A court will not resolve a claimed controversy on the merits unless it is satisfied that the controversy is justiciable." Mejia v. Commissioner of Correction, 112 Conn.App. 137, 146, 962 A.2d 148, cert. denied, 291 Conn. 910, 969 A.2d 171 (2009).
"Justiciability requires (1) that there be an actual controversy between or among the parties to the dispute . . . (2) that the interests of the parties be adverse . . . (3) that the matter in controversy be capable of being adjudicated by judicial power . . . and (4) that the determination of the controversy will result in practical relief to the complainant." Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 254-55, 990 A.2d 206 (2010). (Internal quotation marks omitted.) Shenkman-Tyler v. Central Mut. Ins. Co., 126 Conn.App. 733, 738-39, A.3d (2011).
In his complaint, read in a light most favorable to him, Smigelski claims an actual controversy between the parties. The interest of Dubois in his capacity of disciplinary counsel is adverse to that of Smigelski, as it is Dubois' role to prepare and file presentment proceedings against attorneys such as Smigelski who violate the Rules of Professional Responsibility. Practice Book §§ 2-34A(b)(6), 2-47. This function is for the protection of the court. Doe v. Statewide Grievance Committee, 240 Conn. 671, 678, 694 A.2 1218 (1997). Dubois' office successfully performed this role, proving its presentment against Smigelski. Disciplinary Counsel v. Jacek Smigelski, supra.
Although that adversarial relationship may be said to have ended upon the finding of the court as to Smigelski's violations of the Rules of Professional Responsibility and his unsuccessful appeals, he has reignited the controversy with this petition for a new trial. It is within the court's subject matter jurisdiction to entertain this petition, § 52-270, and, were Smigelski to prevail, he would potentially obtain relief from the findings and rulings of the court. Therefore, there is justiciability sufficient to avoid dismissal.
CONCLUSION:
The defendant's motion to dismiss is denied.