No. CV 03 0472731 S
August 11, 2003
MEMORANDUM OF DECISION RE MOTION TO DISMISS
The plaintiffs, Norman Tuebman, Alan Tuebman and Bechem Transport, Inc., filed a single-count complaint against the defendants, the state of Connecticut, the department of environmental protection (department) and David Nash, on January 3, 2003. The defendants filed a motion to dismiss the complaint for a lack of subject matter jurisdiction, along with a memorandum of law on February 6, 2003. The plaintiffs filed a memorandum of law in opposition on April 16, 2003.
It is not clear from the plaintiff's complaint whether Nash is sued in his individual capacity or as an employee of the state of Connecticut or the department. Paragraph three states in relevant part: "The [d]efendants are . . . David A. Nash individually in his capacity as an employee of the [s]tate of Connecticut and the department of environmental protection." The plaintiffs argue in their memorandum of law in opposition to the motion to dismiss that suit has been brought against Nash in his official and individual capacities. The defendants, while unsure in which capacity suit was brought against Nash, argue that the motion to dismiss should extend to Nash in his individual capacity. Therefore, the court will treat the complaint as being against Nash in both his official and individual capacities.
The plaintiffs allege the following facts. Norman Tuchman and Alan Tuchman owned and operated Bechem Transport, which transported and transshipped chemicals and waste products within Connecticut. In 1992, the Connecticut legislature enacted legislation that authorized the department to regulate the transshipment of hazardous waste. The plaintiffs notified the department of their transshipping activities in 1992 and undertook "affirmative efforts to apply for a formal license and permit to transship hazardous waste" between 1993 and 1998. (Plaintiff's Complaint ¶ 16.) In August 1998, the department issued a notice of violation ordering the plaintiffs to cease and desist all transshipment activities or face fines of $25,000 per day. The plaintiffs complied and then applied for a permit, but they were denied a permit even though they satisfied all known requirements. The department has never issued a permit for the transshipment of hazardous waste. The defendants' actions are in violation of 42 U.S.C. § 1983, the fifth and fourteenth amendments to the United States constitution as well as the due process and equal protection clauses of the Connecticut constitution. The plaintiffs are seeking a declaratory judgment that the defendants violated 42 U.S.C. § 1983 and the Connecticut constitution, a permanent injunction restraining the defendants from prohibiting the plaintiffs from operating their business, compensatory and punitive damages and attorneys fees.
DISCUSSION CT Page 9806
"A motion to dismiss shall be used to assert lack of jurisdiction over the subject matter, 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.) Kizis v. Morse Diesel International, Inc., 260 Conn. 46, 51, 794 A.2d 498 (2002). "[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.) Martinez v. Dept. of Public Safety, 263 Conn. 74, 80-81, 818 A.2d 758 (2003). "The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone." (Internal quotation marks omitted.) Ferreira v. Pringle, 255 Conn. 330, 346, 766 A.2d 400 (2001). "[I]n determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Connor v. Statewide Grievance Committee, 260 Conn. 435, 443, 797 A.2d 1081 (2002). "A court has subject matter jurisdiction if it has the authority to adjudicate a particular type of legal controversy. Such jurisdiction relates to the court's competency to exercise power, and not the regularity of the court's exercise of that power." (Internal quotation marks omitted.) Plasil v. Tableman, 223 Conn. 68, 80, 612 A.2d 763 (1992).
The defendants move to dismiss the entire complaint on the ground that the court lacks subject matter jurisdiction because "they are protected from suit by the doctrine of sovereign immunity and no exception to the doctrine applies." The defendants argue that the state cannot be sued without its consent and that Nash is protected from suit in his official capacity by sovereign immunity and in his individual capacity by statutory immunity.
The plaintiffs argue in their memorandum of law in opposition that the doctrine of sovereign immunity "must relax its bar when suits against the government complain of unconstitutional acts." The plaintiffs further argue that sovereign immunity is inapplicable when state officials act in excess of their statutory authority and when the state violates a constitutionally guaranteed right.
"[A] state cannot be sued without its consent." (Internal quotation marks omitted.) Martinez v. Dept. of Public Safety, supra, 263 Conn. 78. The doctrine of sovereign immunity "protects the state, not only from ultimate liability for alleged wrongs, but also from being required to litigate whether it is so liable." Shay v. Rossi, 253 Conn. 134, 165, 749 A.2d 1147 (2000). The doctrine of sovereign immunity also applies to officers and agents of a state when they are acting in their official capacities. "We have . . . recognized that because the state can act only through its officers and agents, a suit against a state officer concerning a matter in which the officer represents the state is, in effect, against the state." (Internal quotation marks omitted.) Id., 168. Such suits are treated "as if they were solely against the state and have referred to the state as the defendant." (Internal quotation marks omitted.) Tamm v. Burns, 222 Conn. 280, 283, 610 A.2d 590 (1992).
Sovereign immunity, however, does not apply when the government engages in unconstitutional acts or when state employees act in excess of their statutory authority. Doe v. Heintz, 204 Conn. 17, 31, 526 A.2d 1318 (1987). And while the Supreme Court has declined to permit any monetary award against the state or its officials, absent legislative authority, the court has "excepted declaratory or injunctive relief from the sovereign immunity doctrine on the ground that a court may fashion these remedies in such a manner as to minimize disruption of government and to afford an opportunity for voluntary compliance with the judgment." Id., 32. "[I]n a constitutional democracy sovereign immunity must relax its bar when suits against the government complain of unconstitutional acts . . . The allegations of such a complaint and the factual underpinnings if placed in issue, must clearly demonstrate an incursion upon constitutionally protected interests." (Citation omitted; internal quotation marks omitted.) Barde v. Board of Trustees, 207 Conn. 59, 64, 539 A.2d 1000 (1988).
The plaintiffs allege that the defendants deprived them of a protected property interest without due process of the law in violation of the fifth and fourteenth amendments to the United States constitution and article first, § 8 of the Connecticut constitution. The plaintiffs further allege that their rights were violated when the defendants failed to grant them a permit and when the defendants issued the notice of violation. The defendants argue that being denied the right to conduct an activity in violation of valid state law cannot state a claim protected by the due process clause.
In deciding the defendants' motion to dismiss, this court must determine, pursuant to Barde v. Board of Trustees, supra, 207 Conn. 64, whether the allegations of the plaintiffs' complaint and the factual underpinnings of those allegations clearly demonstrate an incursion upon constitutionally protected interests such that sovereign immunity does not bar the plaintiffs' action.
The fourteenth amendment of the United States constitution states in relevant part that no state shall "deprive any person of life, liberty or property, without due process of law . . ." Article first, § 8, of the Connecticut constitution states in relevant part that "[n]o person shall . . . be deprived of life, liberty or property without due process of the law . . ." "[T]he due process provisions of the state and federal constitutions generally have the same meaning and impose similar constitutional limitations . . ." (Citations omitted; internal quotation marks omitted.) State v. Andresen, 256 Conn. 313, 318, n. 5, 773 A.2d 328 (2001).
"[The court's] due process inquiry takes the form of a two-part analysis. [The court] must determine whether the [plaintiffs were] deprived of a protected interest, and, if so, what process [were they] due." (Internal quotation marks omitted.) Giaimo v. New Haven, 257 Conn. 481, 499, 778 A.2d 33 (2001), citing Logan v. Zimmerman Brush Co., 455 U.S. 422, 428, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982). "To have a property interest in a benefit, [the plaintiffs] clearly must have more than an abstract need or desire for it. [They] must have more than a unilateral expectation of it. [They] must, instead, have a legitimate claim of entitlement to it." (Internal quotation marks omitted.) Giaimo v. New Haven, supra, 499. "[W]hen a due process claim has been raised by an applicant for a statutory benefit, the applicant has a protected property interest in the benefit when, under the governing statute, the decision-making body would have no discretion to deny the application if the applicant could establish at a hearing that it met the statutory criteria." Id., 509.
The plaintiffs allege that they were denied due process because they were not issued a permit pursuant to General Statutes § 22a-454. Section 22a-454 (a) states: "No permit shall be granted, renewed or transferred unless the commissioner is satisfied that the activities of the permittee will not result in pollution, contamination, emergency or a violation of any regulation adopted under sections 22a-30, 22a-39, 22a-116, 22a-347, 22a-377, 22a-430, 22a-449, 22a-451 and 22a-462." The statute gives the commissioner the discretion to deny a permit if he believes that the activities of the permittee do not meet certain criteria. The plaintiffs do not have a legitimate claim of entitlement to the permit, because the commissioner has the discretion to deny their application. Therefore, the plaintiffs do not have a protected property interest that would give rise to a due process violation.
The plaintiffs further allege that the defendants' denial of the permit and issuance of the notice of violation violated the equal protection clauses of the United States and Connecticut constitutions. The fourteenth amendment of the United States constitution provides that "[n]o state shall . . . deny any person within its jurisdiction the equal protection of the law." Article first, § 20, of the Connecticut constitution contains similar language. The "equal protection clauses of the state and federal constitutions have a like meaning and impose similar constitutional limitations." (Internal quotation marks omitted.) Barde v. Board of Trustees, supra, 207 Conn. 65. The defendants argue that the plaintiffs have been treated the same as other similarly situated businesses because the department has never issued a permit.
Equal protection "mandates nothing less than that all persons similarly circumstanced shall be treated alike." (Internal quotation marks omitted.) Id. "[A]n equal protection claim based on unequal application of the law . . ., must be established by competent evidence . . . showing . . . intentional and purposeful discrimination." (Internal quotation marks omitted.) Shawmut Mortgage Company v. Wheat, 245 Conn. 744, 755 n. 9, 717 A.2d 664 (1998).
In the present case, the plaintiffs have failed to allege facts which, if proven, would show that they were treated differently from other companies similarly situated or that there was intentional or purposeful discrimination by the defendants. The plaintiffs have alleged that they have been treated exactly the same as other companies because the department has never issued a permit for the transshipment of hazardous waste. (Plaintiffs' Complaint, ¶ 19.) This allegation contradicts any claim that they have been subject to intentional or purposeful discrimination. The defendants therefore cannot have violated the plaintiffs' equal protection rights, because the plaintiffs have not alleged facts to support a claim of denial of equal protection based on unequal application of the law.
The plaintiffs also allege that the issuance of the notice of violation "took or substantially devalued the [p]laintiffs' business without due process of the law" and "constitute[d] a `taking' of property without just compensation." The plaintiffs argue that their due process rights have been violated because the department failed to put in place "the process for obtaining a permit for several years, during which time the plaintiffs conducted business with the knowledge and consent of the Department." The defendants argue that they have not violated the plaintiffs' due process rights because operating a business for profit is not property and thus not subject to due process.
"The assets of a building . . . unquestionably are property, and any state taking of those assets is unquestionably a deprivation under the Fourteenth Amendment. But business in the sense of the activity of doing business, or the activity of making a profit is not property in the ordinary sense . . . (Emphasis in original; internal quotation marks omitted.) College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board, 527 U.S. 666, 675, 144 L.Ed.2d 605, 119 S.Ct. 2219 (1999). The plaintiffs in the present case have not alleged that the defendants have taken their assets, rather the plaintiffs allege that the defendants are keeping them from conducting their business, which, as previously noted, cannot be considered property. Thus, the issuance of the notice of violation cannot be considered a denial of the plaintiffs' property right.
The defendants further argue that the plaintiffs cannot have a fifth amendment property interest because state law requires the plaintiffs to have a permit before they lawfully engage in the transshipment of hazardous waste, thus the plaintiffs were not deprived of a property interest when they were issued the notice of violation. The plaintiffs argue in opposition that they were deprived of their property because they were legally operating their business prior to the enactment of § 22a-454.
The fifth amendment of the United States constitution and article first, § 11 of the Connecticut constitution each provide that private property shall not be taken for public use without just compensation. "The takings clause of the fifth amendment is made applicable to the states through the fourteenth amendment." Melillo v. New Haven, 249 Conn. 138, 141 n. 3, 732 A.2d 133 (1999). In Melillo, as in the present case, "[n]either party claims that the standard to be applied under article first, § 11, of the state constitution is any different from the standard applicable under the takings clause of the fifth amendment to the United States constitution. Accordingly, for purposes of this case, [this court assumes,] without deciding, that article first, § 11, provides the same protection for property owners as that provided under the fifth amendment." Id., 143-44 n. 12. This court will rely on Melillo in making the same assumption.
Property interests "are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law. "(Internal quotation marks omitted.) Webb's Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 160, 101 S.Ct. 446, 66 L.Ed. 358 (1980). "[A] mere unilateral expectation or an abstract need is not a property interest entitled to protection." Id. Where the government "merely regulates the use of property, compensation is required only if considerations such as the purpose of the regulation or the extent to which it deprives the owner of economic use of the property suggest that the regulation has unfairly singled out the property owner to bear a burden that should be borne by the public as a whole." (Emphasis in original; internal quotation marks omitted.) Cohen v. Hartford, 244 Conn. 206, 220, 710 A.2d 746 (1998), citing Yee v. Escondido, 503 U.S. 519, 112 S.Ct 1522, 118 L.Ed.2d 153 (1992).
Section 22a-454 regulates the transhipment of hazardous waste. There have been no allegations that the purpose behind the regulation was to single out the plaintiffs. Section 22a-454 does not single out a single property owner, such as the plaintiffs, but instead regulates all businesses involved in the transshipment of hazardous waste. Furthermore, the plaintiffs cannot have been singled out because, as previously stated, no permits have been issued, thus, the plaintiffs' fifth amendment and article first, § eight rights were not violated.
Based upon the foregoing, this court concludes that the defendants have not engaged in unconstitutional acts against the plaintiffs; accordingly, sovereign immunity will bar the plaintiffs' action unless the defendants were acting in excess of their statutory authority.
The defendants argue that there are no allegations in the plaintiffs' complaint to suggest that the defendants were acting in excess of their statutory authority or acted to further their own interests. The plaintiffs argue in opposition that they have alleged that Nash was acting in excess of his statutory authority because they have alleged that he did not look to all of the facts before denying the permit.
"Sovereign immunity does not bar suits against state officials acting in excess of their statutory authority . . ." (Citation omitted.) Shay v. Rossi, supra, 253 Conn. 169. "In those cases in which it is alleged that the defendant officer is proceeding . . . in excess of his statutory authority, the interest in the protection of the plaintiff's right to be free from the consequences of such action outweighs the interest served by the sovereign immunity doctrine . . . In such instances, the need to protect the government simply does not arise and the government cannot justifiably claim interference with its functions." (Citation omitted; internal quotation marks omitted.) Id. "[T]he precise contours of the `in excess of statutory authority' doctrine" have never been defined. Id., 170.
In determining whether a defendant acts in excess of his statutory authority, our Supreme Court stated in Shay v. Rossi, supra, 253 Conn. 174 and Antinerella v. Rioux, 229 Conn. 479, 497, 642 A.2d 699 (1994), that when a "state employee acts solely to further his or her own illegal scheme and not to carry out government policy, there is no reason to provide immunity from suit." In Antinerella v. Rioux, supra, 479, the court held that the defendant, the high sheriff of Hartford county, acted in excess of his statutory authority when he discharged the plaintiff for his own personal financial gain. The court also held that the defendant's conduct in engaging in fee splitting was solely to further his own interests and not the interests of the government. Antinerella v. Rioux, supra, 495-97. In Shay, the plaintiffs alleged that the defendants acted with self serving motives, which if proven, would have shown that the defendants knew their actions were "legally and factually unjustified." Shay v. Rossi, supra, 173-74. The court in Shay further held that "plaintiffs must do more than allege that the defendants' conduct was in excess of his statutory authority; they also must allege or otherwise establish facts that reasonably support those allegations." Id., 174-75.
In the present case the plaintiffs' allegations against Nash do not rise to the level of the allegations against the defendants in Antinerella and Shay. The plaintiffs' allegations are conclusory: That Nash violated the plaintiffs' constitutional rights. The plaintiffs have failed to allege any specific instances where Nash was acting to further his own interests. The plaintiffs have failed to allege facts from which it could be found that the defendants acted in excess of their statutory authority. Accordingly, because no exception applies, sovereign immunity bars the plaintiffs' actions against the state of Connecticut, the department and David Nash in his official capacity.
This court must next look to the plaintiffs' 42 U.S.C. § 1983 and state law claims against Nash in his individual capacity. The defendants argue that Nash is entitled to qualified immunity from suit under 42 U.S.C. § 1983, because his conduct did not violate the plaintiffs' statutory or constitutional rights. The defendants further argue that Nash is entitled to statutory immunity for any alleged claims under the Connecticut constitution pursuant to General Statutes 4-165. The plaintiffs argue in opposition that Nash violated § 1983 by issuing the notice of violation without statutory authority.
The plaintiffs have alleged that each of the defendants violated 42 U.S.C. § 1983. However, "neither a State nor its officials acting in their official capacities are `persons' under § 1983." Will v. Michigan Department of State Police, 491 U.S. 58, 71, 109 S.Ct 2904, 105 L.Ed.2d 45 (1989). The plaintiffs' 42 U.S.C. § 1983 claim, therefore, can only brought against Nash in his individual capacity.
"[I]n any § 1983 action the initial inquiry must focus on whether the two essential elements to a § 1983 action are present: (1) whether the conduct complained of was committed by a person acting under color of state law; and (2) whether this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States." Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981).
The conduct complained of by the plaintiffs is the denial of a permit and the issuance of the notice of violation. In denying the permit and issuing the notice, Nash was acting under color of state law because he was acting pursuant to General Statutes § 22a-454. See Adickes v. S.H. Kress Co., 398 U.S. 144, 161-62, n. 23, 90 S.Ct 1598, 26 L.Ed.2d 142 (1970). As has been previously determined, however, the conduct in issue did not deprive the plaintiffs of any rights secured by the United States constitution. Therefore, Nash is immune from suit with respect to the plaintiffs' § 1983 claim.
Nash is shielded from suit in his official capacity by sovereign immunity; therefore, he need not demonstrate compliance with § 4-165 and is shielded from any claims brought against him by the plaintiffs in his individual capacity. See Martin v. Brady, 64 Conn. App. 433, 438, 780 A.2d 961 (2001), aff'd 261 Conn. 372, 802 A.2d 814 (2002) ("If the defendants have established their defense of sovereign immunity, they need not demonstrate their compliance with § 4-165"). Therefore, the plaintiffs' 42 U.S.C. § 1983 and state law claims against Nash in his individual capacity are dismissed. For all of the foregoing reasons, the defendants' motion to dismiss the plaintiffs' complaint on the ground that the court lacks subject matter jurisdiction is hereby granted.