Opinion
No. CV 05-4006481S
June 14, 2005
MEMORANDUM OF DECISION
I
The plaintiff, Audley Watson, commenced the present action by service of process against defendants Temmy Ann Pieszak, chief of habeas corpus services, Preston Tisdale, director of special public defenders, Patrice Cohan, special public defender, and the Attorney General on December 20, 2004. The plaintiff's claims relate to the legal representation provided to him in a habeas corpus action that commenced in April of 1999. These claims are brought in the context of a declaratory judgment action wherein the plaintiff undertakes to set forth numerous civil causes of action. The defendants move to dismiss the complaint on the grounds of: (1) the doctrine of sovereign immunity; (2) the existence of a more appropriate remedy; (3) the prior pending action doctrine; (4) the plaintiff's failure and inability to allege that his conviction has been overturned; (5) the assertion that defendant public defenders do not act under color of law; (6) the plaintiff's failure to demonstrate personal participation or standing with respect to some of the defendants; (7) absolute immunity; and (8) insufficiency of process. The motion was accompanied by a supporting memorandum of law. The plaintiff subsequently filed a memorandum in opposition to the motion. The defendants in their memorandum of law assert that this case is barred by the doctrine of sovereign immunity and urge the court to dismiss the case on this basis as other courts have done. The defendants not only cite similar cases where a motion to dismiss was granted, but also attach some of those cases.
The defendants also assert that both public defenders and court-appointed defense attorneys do not act under color of state law and therefore are not subject to suit under 42 U.S.C. § 1983. Rodriguez v. Wepin, 116 F.3d 62.
II
"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.) Blumenthal v. Barnes, 261 Conn. 434, 442, 804 A.2d 152 (2002). The defendants assert that this action should be dismissed based on, inter alia, the doctrine of sovereign immunity. "[T]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss." Bloom v. Gershon, 271 Conn. 96, 113, 856 A.2d 335 (2004). "It is a well-established rule of the common law that a state cannot be sued without its consent." (Internal quotation marks omitted.) Martinez v. Department of Public Safety, 263 Conn. 74, 78, 818 A.2d 758 (2003). "A sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends . . . The practical and logical basis of the doctrine is today recognized to rest on this principle and 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." (Internal quotation marks omitted.) Id., 78-79.
The following criteria have been set forth "for determining whether [a] suit is, in effect, one against the state and cannot be maintained without its consent: (1) a state official has been sued; (2) the suit concerns some matter in which that official represents the state; (3) the state is the real party against whom relief is sought; and (4) the judgment; though nominally against the official, will operate to control the activities of the state or subject it to liability." (Internal quotation marks omitted.) Spring v. Constantino, 168 Conn. 563, 568, 362 A.2d 871 (1975).
The plaintiff makes the following allegations against defendant Pieszak. Defendant Pieszak is employed in the habeas corpus unit of the office of the chief public defender. Defendant Pieszak filed an appearance on behalf of the plaintiff and moved for the appointment of defendant Cohan to represent the plaintiff in petitioning for a writ of habeas corpus. Defendant Pieszak contacted the plaintiff by mail to inform the plaintiff that the habeas corpus unit had appointed defendant Cohan special public defender in the plaintiff's case. Defendant Pieszak "had a duty to protect the representation afforded to the plaintiff through [her] acting agent, defendant Cohan, which [she] failed to do." (Complaint, ¶ 58, p. 11.)
The plaintiff makes the following allegations against defendant Tisdale. Defendant Tisdale is the director of special public defenders at the office of the chief public defender. Defendant Tisdale has certain duties and responsibilities including: "(a) [a]dministration and [m]anagement of all special public defenders and functions within the division of public defender services; (b) [e]valuation of the qualifications of attorneys to serve as special public defenders; (c) [i]mplementing and conducting a training program for special public defenders; (d) [p]roviding support to attorneys in their capacity as special public defenders[; and] (e) monitoring the assigned workload of special public defenders to ensure that the number of assigned cases is not excessive and allows for effective representation[;] approved of [defendant Cohan] as a special public defender." (Complaint, ¶ 12, p. 3.) Defendant Tisdale also "had a duty to protect the representation afforded to the plaintiff through [her] acting agent, defendant Cohan, which [she] failed to do." (Complaint, ¶ 58, p. 11.)
Applying the test set forth in Spring v. Constantine, supra, 168 Conn. 568, the plaintiff alleges that defendant Pieszak is chief of habeas corpus services and that defendant Tisdale is the director of special public defenders. The chief public defender is appointed by the public defender services commission. General Statutes § 51-290. Defendant Pieszak is allegedly employed by the habeas corpus unit of the office of the chief public defender. Defendant Tisdale is allegedly employed as the director of special public defenders at the office of the chief public defender. The defendants Pieszak and Tisdale, as employees of the office of the chief public defender, may be classified as state officials for purposes of common law sovereign immunity. These defendants represent the state in that they play an integral role in assuming that the state meets its obligation to provide counsel to indigent defendants. See id., 569. The suit against defendants Pieszak and Tisdale is actually against the state. Accordingly, the doctrine of sovereign immunity applies to the claims against these defendants.
Defendant Cohan was appointed by the court as a special assistant public defender. The plaintiff makes numerous allegations relating to defendant Cohan's representation of the plaintiff in his petition for a writ of habeas corpus, including violations of the due process clause of the fourteenth amendment to the United States constitution, fraud and legal malpractice. The substance of the allegations against Cohan relate to the performance of Cohan in her representation of the plaintiff.
Defendant Cohan was appointed by the court to act as a special assistant public defender and to represent the plaintiff. Defendant Cohan is immune from liability if the damage or injury complained of was for conduct that took place in the discharge of her duties or within the scope of her employment so long as such conduct was not wanton, reckless or malicious. See General Statutes § 4-165. "The manifest legislative intent expressed by chapter 53[, General Statutes § 4-141 et seq.,] is that an employee is immune where and because the state may be sued, and that the state may be sued in instances where a private person would be liable." Spring v. Constantino, supra, 168 Conn. 571, citing General Statutes § 4-160(a). The claims against defendant Cohan arise from the legal representation provided to the plaintiff by defendant Cohan. The alleged events occurred while defendant Cohan discharged her duties as a special assistant public defender and within the scope of defendant Cohan's employment as such. Therefore, the defendant Cohan is immune from personal liability based on sovereign immunity.
The plaintiff makes no allegations against the defendant Attorney General, simply listing "Attorney General" as the fourth defendant in the summons. There is no indication that the Attorney General is being sued as an individual; in fact, the plaintiff does not even mention him by name. The court must assume that the suit against this defendant is against the state. See General Statutes § 3-125 (setting forth the duties of the Attorney General); Spring v. Constantino, supra, 168 Conn. 568 (setting forth the criteria for a suit against the state). Accordingly, the common law doctrine of sovereign immunity applies to the defendant Attorney General.
The defendants move to dismiss this action on other grounds that do not apply to the facts of this case, including the prior pending action doctrine. While that doctrine is inapplicable to the present case because the identities of the defendants differ; see Cumberland Farms v. Town of Groton, 247 Conn. 196, 216, 719 A.2d 465 (1998); the conduct alleged by the plaintiff relates to matters that may be addressed by the petition for habeas corpus currently pending.
III
The essence of the plaintiff's allegations against defendants Pieszak, Tisdale and Cohan are as to their professional legal performance as to the plaintiff's case, therefore sovereign immunity applies.
IV
Based on the foregoing the complaint is dismissed as to defendants Pieszak, Tisdale, Cohan and Attorney General on the ground of sovereign immunity.
Stengel, J.