Opinion
No. CV03-0100647
August 27, 2003
MEMORANDUM OF DECISION
On February 5, 2003, the plaintiff, Peter Ertel, filed a complaint against the defendants, Arthur Rocque, commissioner of environmental protection; David Leff, deputy commissioner of environmental protection; and Rachel Towbin, an employee of the department of environmental protection (department), in their official and individual capacities. The complaint consists of eight counts and alleges violations of Ertel's equal protection rights, first and fourth amendment rights, substantive and procedural due process rights, and a taking of his property. The complaint is brought under both the federal and state constitutions.
Ertel alleges the following in his complaint. On June 3, 1982, Ertel was granted a permit by the department to add an extension to his dock at 230 Ferry Street in Old Saybrook located on the Connecticut River. After Ertel began construction on his dock in 1983, the nearby owners of Oak Leaf Marina objected to his actions. Ertel thereafter complained to the department that unapproved construction was being conducted at Oak Leaf Marina. In September 1986, Rocque, with the assistance of Towbin, summarily revoked Ertel's construction permit ordering him to remove a preexisting dock without first issuing a compliance order, or affording him an opportunity to correct any defects. On April 8, 2000, Leff issued an order requiring Ertel to remove all docks, pilings, floats, piers, riprap, fill and all other structures seaward of the high tide line and to restore the dock to its preexisting formation at his own expense. Ertel alleges that he was subjected unfairly to harsh treatment by the defendants in retaliation for filing a complaint against Oak Leaf Marina.
Leff, in his official and individual capacities, now moves to dismiss Ertel's complaint on the ground that the court lacks subject matter jurisdiction because the suit against him is barred by the doctrine of judicial immunity. Leff's motion was accompanied by a memorandum of law together with his affidavit; copies of the two declaratory rulings issued by Rocque; and Leff's final decision. Ertel filed a memorandum of law in opposition arguing that a motion to dismiss is not the proper procedural vehicle in which to raise a claim of judicial immunity.
DISCUSSION
"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). "[I]n determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Stepney Pond Estates, Ltd. v. Monroe, 260 Conn. 406, 417, 797 A.2d 494 (2002).
The motion to dismiss "shall always be filed with a supporting memorandum of law, and where appropriate, with supporting affidavits as to facts not apparent on the record." (Internal quotation marks omitted.) Ferreira v. Pringle, 255 Conn. 330, 346 n. 10, 766 A.2d 400 (2001), quoting Practice Book 10-31(a). "Where . . . 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.) Id., 346-47. The court shall "read the factual allegations of the plaintiffs' complaint tempered by the light shed on them by the defendants' affidavits. With respect to those factual allegations, however, that were not disputed by those affidavits either directly or by implication [the court] construe[s] them broadly in the plaintiffs' favor and presume[s] them to be true for the purposes of the motion to dismiss." Shay v. Rossi, 253 Conn. 134, 141, 749 A.2d 1147 (2000).
In the present case, Leff seeks a dismissal of the claims brought against him based on the doctrine of judicial immunity. Leff argues that he is immune from suit because his only involvement in the present case was as an administrative adjudicator. Leff maintains that he was empowered by Rocque to preside over a hearing, to take testimony and to render a final decision on Ertel's petition for a declaratory ruling. Leff contends that these actions are identical to the actions of Superior Court judges, who enjoy absolute immunity from suit for actions taken in the course of their official duties. In opposition, Ertel argues that Leff's motion to dismiss should be denied because a claim of judicial immunity is properly raised in a motion for summary judgment.
"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.) Adgers v. State, Superior Court, judicial district of Hartford, Docket No. CV 02 0817512 (October 28, 2002, Hennessey, J.). "[O]nce 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." (Internal quotation marks omitted.) Milford Power Co., LLC v. Alstom Power, Inc., 263 Conn. 616, 624-25, 822 A.2d 196 (2003).
"The mantle of judicial immunity covers not only judges, but all adjuncts to the judicial process." DeLaurentis v. New Haven, 220 Conn. 225, 242, 597 A.2d 807 (1991). "A functional approach assumes that [i]mmunity flows not from rank or title or location within the Government . . . but from the nature of the responsibilities of the individual official." (Internal quotation marks omitted.) Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 631 n. 4, 749 A.2d 630 (2000) (committee established by court to handle foreclosure sale not entitled to absolute immunity because its actions are administrative and not judicial in nature). "[T]he more distant a function is from the judicial process, the less likely absolute immunity will attach." (Internal quotation marks omitted.) Scotto v. Almenas, 143 F.3d 105, 111 (2nd Cir. 1998) (parole officer who recommended that a warrant be issued for a parolee's arrest was not shielded by absolute immunity because this act is administrative in nature). In Montero v. Travis, 171 F.3d 757, 761 (2nd Cir. 1999), however, the court held that absolute immunity applied to the acts of a parole board commissioner serving the "quasi-adjudicative function" of revoking parole.
In the present case, Ertel alleges that Leff ordered him to remove all docks and structures on his property at his own expense without affording him any opportunity to remedy the defects or construction thereof. In his supporting affidavit, Leff states that he was authorized by Rocque to conduct a fact-finding hearing on Ertel's petition for a declaratory ruling, and that he affirmed the prior order revoking Ertel's construction permit. (Leff's Memorandum of Law in Support of Motion to Dismiss, Leff Affidavit, ¶ 6.) Leff further avers that he ordered Ertel to comply with the order, and instructed him to remove all existing structures seaward of the high tide line on the property and to restore the shoreline. (Leff Affidavit, ¶ 10.)
In the present case, Leff presided over an administrative hearing, and rendered a final decision to uphold the revocation of Ertel's construction permit. Leff's act is quasi-judicial in nature and functionally comparable to that of a judge, to which absolute immunity applies. Here, Leff's act in upholding the revocation of Ertel's permit is analogous to the act of the parole board commissioner in Montero v. Travis, supra, 171 F.3d 761, whose act in revoking a parolee's parole was quasi-judicial in nature and protected by absolute immunity. Accordingly, Leff's act is similarly protected. The motion to dismiss is granted.
Elaine Gordon JUDGE OF THE SUPERIOR COURT