Opinion
No. HHD CV 05 4014739
January 29, 2007
MEMORANDUM OF DECISION RE DEFENDANTS' MOTION TO DISMISS
On March 1, 2005, the plaintiff, Thaddeus Taylor, filed this action in New Haven Superior Court against the state of Connecticut, Governor M. Jodi Rell, the former chief court administrator Joseph H. Pellegrino, and a former civil presiding judge of New Haven Superior Court Jonathan E. Silbert. At the time the complaint was filed, the plaintiff was a state prisoner in the custody of the department of corrections. On July 27, 2005, Judge Pittman, sua sponte, transferred this case to the Hartford judicial district.
While the plaintiff styles this case as a class action lawsuit, no class has been certified. Consequently, there is only one plaintiff in the present case.
The plaintiff also lists the public defender services commission and eight additional judges of the Superior Court as defendants in his complaint. None of these entities were served or even named in the summons. Consequently, they are not defendants in this action. "One who is not served with process does not have the status of a party to the proceedings . . . A court has no jurisdiction over persons who have not been made parties to the action before it." (Internal quotation marks omitted.) Security Ins. Co. of Hartford v. Lumbermens Mutual Casualty Co., 264 Conn. 688, 722, 826 A.2d 107 (2003); Exley v. Connecticut Yankee Greyhound Racing, Inc., 59 Conn.App. 224, 234-35, 755 A.2d 990, cert. denied, 254 Conn. 939, 761 A.2d 760 (2000).
The plaintiff has since been released from prison.
In his complaint, the plaintiff alleges that he has two habeas corpus cases, and several petitions, pending before Connecticut Superior Court judges that have not been resolved. The plaintiff further alleges that the defendants have not assigned enough judges to pending habeas corpus petitions, that the defendants wilfully underfund both the court system and the public defender's office, that the defendants create and maintain a policy depriving the plaintiff of prompt resolutions to his pending habeas corpus and other post-trial proceedings, and that consequently the criminal justice system systematically discriminates against minorities. The plaintiff argues that the defendants' practices violate amendments six, eight and fourteen of the Constitution of the United States; 42 U.S.C. § 1983; article first, §§ 1, 8, 10, 12 and 20 of the Constitution of Connecticut; and General Statutes §§ 51-289, 51-293(a)(1) and (b) and 51-296.
The plaintiff seeks a declaratory judgment that the defendants violated the state and federal constitutions, a preliminary and permanent injunction requiring the defendants to provide a statewide indigent defense system where all criminal defendants are treated equally and to provide speedier post-trial proceedings, compensatory and punitive damages and attorneys fees. On July 29, 2005, the defendants filed a motion to dismiss the complaint in its entirety and a memorandum of law in support, alleging, inter alia, that the plaintiff's claims against the defendants in their official capacities are barred by statutory, sovereign, and judicial immunity, and that the claims against the defendants in their individual capacities fail for insufficiency of service of process. On August 21, 2006 the plaintiff filed a one paragraph objection to that motion, without a memorandum of law, affidavits or exhibits. This matter was heard on the short calendar in October 2006. The plaintiff failed to appear at the hearing and sought no continuance, although defense counsel fulfilled his obligation to timely notify the plaintiff of the hearing.
"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); see also Kozlowski v. Commissioner of Transportation, 274 Conn. 497, 501, 876 A.2d 1148 (2005); Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005). "The motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, and (5) insufficiency of service of process. This motion shall always be filed with a supporting memorandum of law, and where appropriate, with supporting affidavits as to facts not apparent on the record." Practice Book § 10-31(a).
"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." (Internal quotation marks omitted.) Cox v. Aiken, supra, 278 Conn. 211; Filippi v. Sullivan, supra, 273 Conn. 8; Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 432-33, 829 A.2d 801 (2003). "The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone . . . Where, however . . . the motion is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue and need not conclusively presume the validity of the allegations of the complaint." (Internal quotation marks omitted.) Ferreira v. Pringle, 255 Conn. 330, 346-47, 766 A.2d 400 (2001). The court will first address the claim that the named defendants Rell, Pellegrino and Silbert were not properly served in their individual capacities. "[A]ny claim of lack of jurisdiction over the person as a result of an insufficiency of service of process is waived unless it is raised by a motion to dismiss filed within thirty days in the sequence required by Practice Book § 10-6 . . ." (Emphasis in original.) Pitchell v. Hartford, 247 Conn. 422, 433, 711 A.2d 797 (1999). In the present case, assistant attorney general Steven Strom entered an appearance for all defendants in their official capacities only on March 23, 2005. The motion to dismiss, filed on July 29, 2005, argues on behalf of all defendants that the plaintiff's action against the defendants in their individual capacities must be dismissed due to insufficiency of service of process. The memorandum also clearly addresses the claims against the defendants in their individual capacities. While no prior appearance for the defendants in their individual capacities was filed, this court may, and does, treat the July 29, 2005 motion to dismiss as an appearance by the assistant attorney general for the defendants in their individual capacities.
See, e.g., Beardsley v. Beardsley, 144 Conn. 725, 730, 137 A.2d 752 (1957) (stating that the entry of an appearance need not necessarily be made by filing a formal appearance form).
The record is devoid of evidence suggesting that the plaintiff served any of the defendants in their individual capacities. Because the defendants were never served in their individual capacities, the motion to dismiss is granted for insufficiency of service of process with respect to the defendants Rell, Pellegrino and Silbert in their individual capacities. See Security Ins. Co. of Hartford v. Lumbermens Mutual Casualty Co., supra, 264 Conn. 722.
The court will now turn to the issue of its jurisdiction as to the plaintiff's claim for damages against both Governor Rell in her official capacity, and the state of Connecticut. "The doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss" (Internal quotation marks omitted.) Miller v. Egan, 265 Conn. 301, 313, 828 A.2d 549 (2003). "It is settled law in Connecticut that the state is immune from suit unless, by appropriate legislation, it authorizes or consents to suit . . . The state's sovereign right not to be sued may be waived by the legislature, provided clear intention to that effect is disclosed by the use of express terms or by force of a necessary implication." (Internal quotation marks omitted.) First Union National Bank v. Hi Ho Mall Shopping Ventures, Inc., 273 Conn. 287, 293-94, 869 A.2d 1193 (2005).
It is also established that "[w]hen a plaintiff brings an action for money damages against the state, [the plaintiff] must proceed through the office of the claims commissioner pursuant to chapter 53 of the General Statutes, §§ 4-141 through 4-165. Otherwise, the action must be dismissed for lack of subject matter jurisdiction under the doctrine of sovereign immunity." Prigge v. Ragaglia, 265 Conn. 338, 349, 828 A.2d 542 (2003). Additionally, "[a] suit against a state officer concerning a matter in which the officer represents the state is, in effect, against the state . . . This is because a state can act only through its officers and agents . . . In suits, therefore, in which the officials or agents are being sued for actions that concern matters in which they represent the state, [the court] [considers] such suits as if they were solely against the state." (Citations omitted; internal quotation marks omitted.) Mercer v. Strange, 96 Conn.App. 123, 127-28, 899 A.2d 683 (2006).
In the present case, there is no indication that the state has consented to being sued by this plaintiff via statute or other express intent. As in Prigge, the plaintiff has not proceeded through or received permission from the office of the claims commissioner to sue the state, pursuant to General Statutes §§ 4-141 through 4-165, which is a prerequisite to suing the state absent a waiver. Further, in suing the governor in her official capacity, the plaintiff has only alleged that the governor is responsible for creating a state budget, upholding the laws of the state and appointing the chairman of the public defender services commission. It is clear that these allegations only concern matters in which the governor represents the state. See Mercer v. Strange, supra, 96 Conn.App. 128. Consequently, this court may consider the suit against Governor Rell in her official capacity as if it were solely against the state. Id. Because the plaintiff has not proceeded through the office of the claims commissioner to bring this suit, and because the state has not consented to suit, the plaintiff's claim for damages against the state of Connecticut and Governor Rell are dismissed on the basis of sovereign immunity.
The plaintiff has also sued the defendants Pellegrino and Silbert in their official capacities for damages, alleging that the defendants are responsible for ensuring that the plaintiff's cases are timely heard, and that the assignment of judges to habeas corpus cases is inadequate. "Since the doctrine of judicial immunity implicates the issue of subject matter jurisdiction, it is appropriate to apply the doctrine to dismiss any case in which it deprives the court of subject matter jurisdiction." (Internal quotation marks omitted.) Consumer Credit Coalition of Connecticut, Inc. v. Lodi, Superior Court, judicial district of Middlesex, Docket No. CV 03 0100918 (August 27, 2003, Gordon, J.) ( 35 Conn. L. Rptr. 300). It is settled law that "a judge may not be civilly sued for judicial acts he undertakes in his capacity as a judge . . . This role of judicial immunity serves to promote principled and fearless decision-making by removing a judge's fear that unsatisfied litigants may hound him with litigation . . ." (Citations omitted; internal quotation marks omitted.) Carrubba v. Moskowitz, 274 Conn. 533, 540, 877 A.2d 773 (2005).
The acts alleged against the defendants Pellegrino and Silbert, namely the job of assigning judges to specific cases or matters, scheduling cases for hearings, and managing the resources of the judicial branch, fall within the ambit of judicial immunity based upon the character of those acts. Although "even judges do not enjoy absolute immunity for administrative as opposed to judicial actions," Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 630, 749 A.2d 630 (2000), the acts complained of are judicial, not administrative, in nature. While no Connecticut case law has been found explicitly determining if the assignment or scheduling of judges or cases is a judicial function, there is analogous case law from other jurisdictions holding that similar acts are entitled to judicial immunity. See, e.g., Evans v. Supreme Court of Ohio, 119 Ohio Misc.2d 34, 38, 773 N.E.2d 621 (2002) (rejecting argument that chief judge's appointment of a judge to sit in a court of common pleas was ministerial in nature, instead holding that chief judge was acting in his judicial capacity.); Martinez v. Winner, 771 F.2d 424, 434 (10th Cir. 1985), vacated on other grounds, 475 U.S. 1138, 106 S.Ct. 1187, 90 L.Ed.2d 333 (1986) (stating that "the assignment of cases is still a judicial function in the sense that it directly concerns the case-deciding process, and by statute it is the responsibility of the chief judge . . . in this case"). See also Anonymous v. Connecticut Bar Examining Committee, Superior Court, judicial district of Hartford, Docket No CV 90 534160 (August 17, 1995, Corradino, J.) ( 15 Conn. L. Rptr. 218) (setting state bar admission requirements is a judicial function entitling the Superior Court to judicial immunity).
By way of example, an administrative action not covered by absolute judicial immunity would include the thing of subordinates, Forrester v. White, 484 U.S. 219, 108 S.Ct 538, 98 L.Ed.2d 555 (1988).
The duties of assigning judges, ensuring that cases are timely heard, and allocating the resources of the judicial branch between various dockets and courthouses are duties undertaken and executed in an official capacity by a chief court administrator, administrative judge or presiding judge. These duties are judicial in nature, whether undertaken pursuant to a statutory dutyor the internal structure of the judicial branch. That these actions are undertaken in chambers instead of a courtroom does not lessen their judicial nature nor render them administrative in nature. The plaintiff's claims against the defendants Pellegrino and Silbert in their official capacities for damages implicate judicial immunity and are dismissed, as this court lacks subject matter jurisdiction over them.
In Connecticut, the chief court administrator has the statutory duty to "assign to each division" of the Superior Court "as many judges as he deems advisable and shall designate the holding of sessions at such times and localities as he deems to be in the best interest of court business . . ." General Statutes § 51-164t(b).
In addition to his claims against the defendants in their official capacities seeking damages, the plaintiff also seeks injunctive and declaratory relief from the state, Governor Rell, and judges Silbert and Pellegrino. It the present case, the plaintiff seeks a declaratory judgment that the defendants violated the state and federal constitutions and preliminary and permanent injunctions requiring the defendants to provide a statewide defense system which will adequately and equally funds habeas corpus proceedings with other criminal matters and dispose of all criminal post-trial matters within 120 days. In his complaint the plaintiff has alleged the following constitutional violations, which form the basis for his injunctive and declaratory relief claims. The plaintiff first alleges that because the majority of prisoners are African-American and indigent, the criminal defense system systematically discriminates against minorities through its post-trial and habeas corpus proceedings. Second, the plaintiff alleges that the defendants do not assign a sufficient number of judges to post-trial proceedings, and underfund both the public defender's office and supporting staff; thereby delaying the disposition of habeas corpus and related petitions. The plaintiff argues that such conduct has resulted in his being incarcerated unnecessarily, and has deprived the plaintiff of effective assistance of counsel. The plaintiff also alleges that the state has delayed the hearing of, inter alia, two of the plaintiff's habeas corpus petitions, thereby requiring the plaintiff to remain1incarcerated for a longer period. The plaintiff argues that the alleged practices violate 42 U.S.C. § 1983, amendments six, eight and fourteen of the United States Constitution, and article first §§ one, eight, ten, twelve, and twenty of the Connecticut Constitution. The defendants counter that sovereign immunity bars the plaintiff's declaratory and injunctive relief claims.
The cases are Taylor v. Warden, Superior Court, judicial district of New Haven, Docket No. CV 98 0467655, and Taylor v. Commissioner, Superior Court, judicial district of New Haven, Docket No. CV 01 0482868. With respect to Taylor v. Commissioner, the court takes judicial notice that Judge Hadden dismissed this case on January 8, 2007, after the plaintiff failed to appear for trial.
Our Supreme Court, in Miller v. Egan, supra, 265 Conn. 301, recently had occasion to clarify sovereign immunity in the context of lawsuits seeking injunctive or declaratory relief. In Miller, the court identified an additional exception to the general rule of sovereign immunity, holding that "sovereign immunity does not bar an action seeking declaratory or injunctive relief" in situations where "a process of statutory interpretation establishes that the state officials acted beyond their authority . . ." Id., 327. Subsequent to Miller, our Appellate Court noted that the Supreme Court has recognized three exceptions to sovereign immunity seeking injunctive or declaratory relief: "(1) when the legislature, either expressly or by force of a necessary implication, statutorily waves 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.) Tuchman v. State, 89 Conn.App. 745, 753, 878 A.2d 384, cert. denied, 275 Conn. 920, 883 A.2d 1252 (2005). For the second and third exceptions, "our Supreme Court has imposed specific pleading requirements." Id.
The plaintiff has not alleged that the legislature has waived sovereign immunity, or that the defendants engaged in wrongful conduct in excess of statutory authority. The plaintiff's claims center on alleged constitutional violations, thereby implicating the second exception to sovereign immunity. See Tuchman v. State, supra, 89 Conn.App. 753. In such cases, it is insufficient for a plaintiff to merely allege constitutional violations in attempting to overcome sovereign immunity. Rather, "[f]or a claim made pursuant to the second exception, complaining of unconstitutional acts, our Supreme Court has stated 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." (Internal quotation marks omitted.) Id., 753-54.
While the plaintiff claims that the defendants' practices violate his constitutional rights, the plaintiff has asserted few specific facts to substantiate these claims, relying instead upon conclusory statements. The plaintiff's allegations of constitutional violations are insufficient to withstand the motion to dismiss. First, the plaintiff has not alleged or submitted facts demonstrating that his status as an African-American has resulted in the deprivation of any constitutional right. Second, the plaintiff has not specifically identified how the alleged underfunding of the public defender's office or the assignment of judges has in any way deprived him of effective assistance of counsel or has resulted in constitutional violations. The plaintiff only alleged that several cases and petitions are awaiting disposition, that the matters were filed at various times, and a conclusory statement that as a result of the state's "inadequate resources, inadequate assignment of sufficient judges and supporting staff," the plaintiff was forced to remain incarcerated.
Our Appellate Court has held that "an equal protection challenge cannot be supported on [the basis of disparate impact] alone. Intentional or purposeful discrimination must be shown to make a successful equal protection challenge." Wendt v. Wendt, 59 Conn.App. 656, 685, 757 A.2d 1225, cert. denied, 255 Conn. 918, 763 A.2d 1044 (2000). The plaintiff's factual allegations with respect to the alleged state constitutional violations, at best, merely implicate disparate impact, and are insufficient to withstand the motion to dismiss. The plaintiff, moreover, has not identified any specific actions or omissions undertaken by the defendants in any case which caused a specific delay. Nor has he alleged any specific facts which would establish any intentional or purposeful discrimination on the part of the defendants. Even taking the facts to be those alleged in the complaint, the plaintiff has not met the specific pleading requirements necessary to overcome sovereign immunity and has not "clearly [demonstrated] an incursion upon constitutionally protected interests." (Internal quotation marks omitted.) Tuchman v. State, supra, 89 Conn.App. 753-54.
The plaintiff's allegations and prayer for injunctive and declaratory relief against the defendants for the numerous alleged constitutional violations do not sufficiently demonstrate a proper factual basis to support the second exception to the doctrine of sovereign immunity under Tuchman. "In the absence of a proper factual basis in the complaint to support the applicability of [the constitutionally protected interests exception], the granting of a motion to dismiss on sovereign immunity grounds is proper." (Internal quotation marks omitted.) Tuchman v. State, supra, 89 Conn.App. 754.
In suing the defendants Pellegrino and Silbert for injunctive and declaratory relief, the plaintiff alleges that the defendants are responsible for ensuring that habeas corpus and related claims are timely heard. Essentially, the plaintiff's claims for injunctive relief concern the funding of the judiciary and the public defender services commission, and the assignment of judges. The plaintiff has not alleged any specific facts with respect to either defendant, instead only generalizing his grievances. The United States Supreme Court has observed that "[l]ike other forms of official immunity, judicial immunity is an immunity from suit, not just from ultimate assessment of damages." Mireles v. Waco, 502 U.S. 9, 11, 112 S.Ct. 286, 116 L.Ed.2d 9 (1991). To the extent that the plaintiff is seeking present injunctive relief as to these defendants, judicial immunity bars those claims.
The United States Supreme Court, however, has previously noted that a state court judge is not immune from suit for "prospective injunctive relief" in the context of lawsuits brought pursuant to 42 U.S.C. § 1983, which is another form of relief sought in the present case. Pulliam v. Allen, 466 U.S. 522, 104 S.Ct. 1970, 80 L.Ed.2d 565 (1984). Pulliam, however, was legislatively overruled in 1996 by enactment of section 309(c) of the Federal Courts Improvement Act, Pub.L. No. 104-3 17, 110 Stat. 3847 (1996). With the codification of the section 309 (c) amendment, 42 U.S.C. § 1983 states that "injunctive relief shall not be granted" in an action brought against "a judicial officer for an act or omission taken in such officer's judicial capacity . . . unless a declaratory decree was violated or declaratory relief was unavailable." Under the facts here, no prospective injunctive relief would be available. See Bolin v. Story, 225 F.3d 1234, 1242 (11th Cir. 2000).
No prior decree has been alleged, nor has plaintiff alleged or argued that declaratory relief is unavailable to him. Given the vague and conclusory nature of the complaint, the court is unable to say that such relief is unavailable in a properly plead case.
As to the action against defendants Pellegrino and Silbert for declaratory relief, it raises nonjusticiable issues. "A case that is nonjusticiable must be dismissed for lack of subject matter jurisdiction." Mayer v. Biafore, Florek O'Neill, 245 Conn. 88, 91, 713 A.2d 1267 (1998).
Plaintiff's claims of underfunding of the public defender system are not within the purview of the judicial branch or the defendant judges. Under General Statutes § 51-291:
The Chief Public Defender shall . . . (13) Prepare and submit to the [public defender services] commission estimates of appropriations necessary for the maintenance and operation of public defender services, and make recommendations with respect thereto; and with the approval of the commission, and after such modification as the commission directs, submit the budget requests to the Governor.Thereafter the legislature enacts the budget for the public defender system and the governor signs or vetoes it. The judicial branch, and the defendant judges, play no role to which a declaratory action would pertain in that process.
The same is true of the alleged violations of General Statutes §§ 51-289, 51-293(a)(1) and (b) and 51-296, which establish the public defender services commission, and provide for the appointment and compensation of public defenders to represent indigent criminal defendants.
As to the separate claim that an inadequate number of judges are available to dispose of post-trial criminal matters, such as habeas petitions, the case of Pellegrino v. O'Neill, 193 Conn. 670, 480 A.2d 476, cert. denied, 469 U.S. 875, 105 S.Ct. 236, 83 L.Ed.2d 176 (1984), governs. In the present case, the issues raised by the plaintiff with respect to the financing of the judicial system and the alleged delays are essentially identical to the issues raised in Pellegrino. In Pellegrino, the plaintiffs complained of an undue delay in the disposition of civil cases, due to inadequate judicial resources. Here the plaintiff complains of an undue delay in the disposition of post-trial criminal proceedings because of inadequate judicial resources. As the Supreme Court noted in Pellegrino, under the Connecticut constitution, "[i]ncreases in the number of judges, as well as appointments to the additional positions created, are not within the province of the judiciary. Conn. Const., art. V § 2, amend. XX § 2." Id., 678.
The underlying claim here, that there are an insufficient number of judges to process the business of the courts, is a nonjusticiable issue, for the same reason that it was in Pellegrino. It is clear that this court, and the defendants Pellegrino and Silbert, are unable, under the separation of powers doctrine and the holding in Pellegrino, to grant the plaintiff the relief he desires in regard to increasing the judicial staffing of the court. The plaintiff's request for injunctive and declaratory relief with respect to the defendants Pellegrino and Silbert is dismissed, because the defendants are judicially immune from suit for injunctive relief, and because the plaintiff has raised nonjusticiable issues, depriving this court of subject matter jurisdiction. See Mayer v. Biafore, Florek O'Neill, supra, 245 Conn. 91.
For all of the reasons set forth above, the defendants' motion to dismiss is granted as to all claims against all defendants in all capacities.
James T. Graham
Superior Court Judge