Opinion
No. DNCV01-0456273 S
August 18, 2006
MEMORANDUM OF DECISION
The history of this case and the preceding litigation is quite lengthy. Initially, the administratrix of the estate for Judge Kinney filed a workers' compensation claim. Survivor benefits were awarded, however, the Supreme Court subsequently ruled that a judge of the Superior Court was not an employee for purposes of entitlement to workers' compensation benefits and as such, was not covered by the workers' compensation system (see Kinney v. State, 213 Conn. 54, 566 A.2d 670 (1989). Further proceedings have followed, including workers' compensation proceedings, an appeal to the Appellate Court of the state of Connecticut, a request for certification to the Connecticut Supreme Court, and to United States Supreme Court, all of which were unsuccessful from the plaintiff's perspective. An action was initiated in the United States District Court followed by an appeal to the Second Circuit Court of Appeals, which again were unsuccessful. On August 1, 1994, the plaintiff filed a claim sounding in negligence with the office of the claims commissioner which was denied. The decision of the claims commissioner and recommendation to the legislature to deny the claim was rejected in house joint resolution no. 41, file no. 540 and permission to sue was authorized.
Claim was brought pursuant to Special Act. No. 94-13, Section 1, which intended to waive the time limitation as set forth in Connecticut General Statutes § 4-148(a). The act reads, in relevant part, as follows:
a) Notwithstanding the failure to file a proper notice of a claim against the state with the clerk of the office of the claims commissioner, as required by Section 4-147 of the general statutes, with the time limitations specified by subsection (a) of Section 4-148 of the general statutes, and notwithstanding the provisions of subsection (c) of said Section 4-148 barring the presentment of a claim once considered by the claims commissioner, by the general assembly or in a judicial proceeding, Joan A. Kinney is authorized pursuant to the provisions of subsection (b) of said Section 4-148 to present her claim against the state to the claims commissioner, provided she files a notice of such claim with the clerk of the office of the claims commissioner in accordance with said Section 4-147 not later than October 1, 1994.
(b) The general assembly finds: That Joan A. Kinney is the widow of Frank J. Kinney, Jr.; that Frank J. Kinney, Jr. was a judge of the superior court who died from a heart attack on September 28, 1987; that Frank J. Kinney, Jr., at the time of his death, in addition to his judicial responsibilities, was the presiding criminal and administrative judge for the judicial district of New Haven, the chief administrative judge of the criminal division of the superior court and the chairman of the Commission to Study Alternate Sentences; that Joan A. Kinney filed a workers' compensation claim against the state alleging that the decedent's fatal heart condition was causally related to work-induced stress; that the workers' compensation commissioner for the third district decided that the decedent's death arose out of and in the course of his employment and awarded Joan A. Kinney the maximum allowable spousal survivorship benefits; that the state appealed the decision to the compensation review division; that the state appealed not on the issue of causation but on whether a judge is an employee for workers' compensation purposes; that the compensation review division reserved the questions of law for the advice of the appellate court; that the supreme court transferred the reservation to itself that the supreme court on November 28, 1989, in Kinney v. State, 213 Conn. 54, decided that a judge is not an employee for purposes of entitlement to workers' compensation benefits; that a subsequent hearing in the compensation review division was decided adversely to Joan A. Kinney, as was the appeal of that decision to the appellate court, and the petition for certification for appeal from the appellate court was denied by the supreme court on May 10, 1990, in Kinney v. State, 215 Conn. 807; that a petition for certiorari was denied by the United States Supreme Court; that an action against the state in federal District Court was decided adversely to Joan A. Kinney and, upon appeal of that decision, the Second Circuit Court of Appeals affirmed the decision of the District Court; that an action in superior court was dismissed on the grounds of sovereign immunity; and that Joan A. Kinney failed to timely file a notice of claim against the state with the claims commissioner because she initially prevailed in her claim for workers' compensation benefits and then was forced to litigate her claim to benefits when the state appealed that award. The general assembly further finds it would be just and equitable to authorize Joan A. Kinney to present her claim against the state to the claims commissioner, that there are compelling equitable circumstances to support such authorization and that such authorization would serve a public purpose by not penalizing a person who exhausts his or her administrative and judicial remedies before filing a claim against the state with the claims commissioner.
(c) The state shall be barred from setting up the failure to comply with the provisions of Sections 4-147 and 4-148 of the general statutes, from denying that notice of the claim was properly and timely given pursuant to said Sections 4-147 and 4-148 and from setting up the fact that the claim had once been considered by the claims commissioner, by the general assembly or in a judicial proceeding as defenses to such claim.
The defendant moves for Summary Judgment on the ground that the plaintiff's claim is not timely under the provisions of Connecticut General Statutes § 4-148(a) which provides that "no claims shall be presented under this chapter but within one year after it accrues . . . no claim shall be presented more than three years from the date of the act or event claimed of." The events underlying the plaintiff's complaint culminated in the plaintiff's death on September 28, 1987. The claim was brought before the claims commissioner and was filed on August 1, 1994, approximately seven years after the death of the plaintiff.
The decision as to the validity of the Special Act is dispositive as to the issue of timeliness under Section 4-148.
In part, the Special Act states the following: "The General Assembly further finds it would be just and equitable to authorize Joan A. Kinney to present her claim against the state to the claims commissioner, that there are compelling equitable circumstances to support such authorization, and that such authorization would serve a public purpose by not penalizing a person who exhausts his or her administrative and judicial remedies before filing a claim against the state with the claims commissioner."
The defendant's motion is based on the claim that this Special Act is unconstitutional and a public emolument. Specifically, the defendant cites Article First of the Constitution of the State of Connecticut which provides that "all men, when they form a social compact, are equal in rights; and no man or set of men are entitled to exclusive public emoluments or privileges from the community." There is no dispute that this section of the constitution prohibits the legislature from passing acts solely for the benefit of an individual without a public purpose.
In this context, a review of any act which is claimed to be unconstitutional requires the state to demonstrate that "the sole objective of the general assembly is to grant personal gain or advantage to an individual" state ex rel. Higgins v. Civil Service Commission, 139 Conn. 102, 106, 90 A.2d 862, 1952, Chotkowski III v. State, 240 Conn. 246, 257, 690 A.2d 368 (1997). A review of a public act under these circumstances requires the court to apply a strong presumption of constitutionality to the act and further that the party challenging the act bears the burden of proving the statute "unconstitutional beyond a reasonable doubt." Beccia v. Waterbury, 192 Conn. 127, 133, 470 A.2d 1202 (1984).
"No enactment creating a preference can withstand a constitutional attack if the sole objective of the general assembly is to grant personal gain or advantage to an individual. Its validity is contingent, at least in part, upon its furthering a public purpose; if enacted with that end in view, legislation can be sustained even though it may incidentally confer a direct benefit upon an individual or a class . . . only if an act serves some public purpose can it be constitutionally sufficient." Merely v. State, 211 Conn. 199, 212-13, 558 A.2d 977 (1989).
Thus, Special Act No. 94-13 is constitutional if it serves a public purpose. The meaning of public purpose has generally been construed broadly and the Connecticut Supreme Court has held that the "concept expands with the population, economy, scientific knowledge, and changing conditions . . . generally, if an act will promote the welfare of the state, it serves a public purpose." Wilson v. Connecticut Product Development Corp., 167 Conn. 111, 115-16, 355 A.2d 72(1974).
By the same token, it has been held that "[T]he legislature cannot `by mere fiat or finding, make `public' a truly `private' purpose . . . Its findings and statements about what is or is not `public' cannot be binding upon the court." Chotkowski III v. State, 240 Conn. 246, 258, 690 A.2d 368 (1997), Lyman v. Adorno, 133 Conn. 511, 52 A.2d 702 (1947).
A review of constitutionally validated special public acts shows that acts have been found to serve a valid public purpose if they remedy an injustice done to an individual for which the state itself bears some responsibility. Thus, in Chotkowski III v. State, 240 Conn. 246, 690 A.2d 368 (1997), a special act was found to serve a public purpose in that an individual's failure to comply with the provisions of § 4-148 of the Statutes was based upon being misinformed by a state official and being misled that he had no right of redress against the state for the damages he was claiming. Similar circumstances are found in Sanger v. Bridgeport, 124 Conn. 183, 198 A.2d 746 (1938), where a public purpose was found because a government employee was responsible for the plaintiff's noncompliance with the statutory notice, and the official had received de facto notice. In Sanger, a clerk assisted the plaintiff in preparing notice on a claim arising from a defective sidewalk, which notice was subsequently found to be improper.
In contrast to Chotkowski III and Sanger v. Bridgeport, are the majority of other cases which have examined the constitutionality of special acts. In Chotkowski II v. State, 213 Conn. 13, 566 A.2d 419 (1989) a special act was declared unconstitutional because it was based on the "honorary obligation" that the legislature felt the state owed the plaintiff. It is noteworthy that the plaintiff in Chotkowski II had failed to raise the issue of the state's involvement in the claimed injustice which resulted in his failure to provide timely notice, which ultimately resulted in the outcome as reported in Chotkowski III, supra. Further in Merly v. State, supra, 211 Conn. 199, a special act allowing the administrator of a decedent's estate to sue the state was held to grant an exclusive public emolument in violation of the Connecticut constitution. Vecchio v. Sewer Authority, 176 Conn. 497, 408, A.2d. 254 (1979) invalidated a special act which allowed an untimely appeal from a sewer assessment; Hillier v. East Hartford, 167 Conn. 100, 355 A.2d 1 (1974) invalidated a special act which permitted late notice of a sidewalk defect given to a municipality. Notably, Hillier v. East Hartford, supra, is almost identical factually to Sanger v. Bridgeport, except for the important distinction that there was no official involved in the preparation of the notice, and thus the behavior or action of the state could not be implicated. Finally, Tough v. Ives, 162 Conn. 274, 294 A.2d 67 (1972) found unconstitutional an act allowing the plaintiff to sue the highway commissioner in negligence while removing the concurrent negligence of anyone but the plaintiff and her father.
Section 3 of the special act considered here, 94-13, contained a provision allowing the correction of a notice given to the Hartford Housing Authority by Carlos Maysonet. While section three of the act is not related to the instant case, the analysis of the court (Lavine, J.), in ruling on the constitutionality of the act is. In Maysonet v. Hartford Housing Authority, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 95 0545863 (December 4, 1996), 18 Conn. L. Rptr. 346, the court determines whether § 3 of Special Act 94-13 survives constitutional scrutiny. In concluding that it does not, the court finds that the act has no public purpose in that it allows one individual a privilege that otherwise would not exist under the provisions of law. The court states that to find public purpose in this act would mean that "such a public purpose would exist in every case in which a defective notice had been given and would render the `public purpose' requirement of Merly and other cases a meaningless nullity."
The provision of the special act in this case conveys a right to only this plaintiff. It seeks to remedy the "penalty" of a person who exhausts their administrative and judicial remedies before filing a claim against the claims commissioner. However, it remedies that penalty only for this plaintiff. It does not change the notice provisions of § 4-148(a) of the Connecticut General Statutes and does not create relief from those requirements for others similarly aggrieved or affected by those provisions.
A final look at Special Act 94-13, shows yet another illustration of the application of the foregoing analysis to the issue of public purpose. In Section 2 of the act, authority is conferred upon a Louise Switaj to file an untimely claim under the provisions of Connecticut General Statute § 4-147 and 4-148. In stating the reason, the act sets forth that "Louise Switaj did not timely file a claim against the claims commissioner because repeated assurances and promises made to her by the department of transportation and the department of environmental protection that they were going to rectify the contamination of her well." This section goes on to say that "such authorization would serve a public purpose by ensuring that state agencies take responsibility for damage caused to private property and take prompt remedial action when their activities result in environmental pollution that poses serious health risks to residents in the surrounding area."
This declaration of public purpose is, on its face, consistent with the standards declared in Chotkowski III v. State. In the instant case, there is no showing that the state had any action, involvement or participation in the plaintiff's undisputed failure to comply with those requirements.
This court concludes the act serves no "public purpose" and as such, does not properly extend the time in which a claim can be presented under § 4-148 of the statutes. It is therefore unconstitutional.
Accordingly, the defendant's motion for summary judgment is granted.