Opinion
No. CV 03 0081648 S
July 30, 2003
MEMORANDUM OF DECISION
The defendants, Philip E. Austin, John D. Peterson, and Ross MacKinnon, move to dismiss the complaint of the plaintiff, Moshe Gai, for lack of subject matter jurisdiction based on the prior pending case doctrine, the failure to exhaust grievance procedures, the absence of standing, and sovereign immunity. On July 25, 2003, the court heard argument on this motion.
The first count of the complaint alleges that the defendants, officials of the University of Connecticut, and the plaintiff, a professor employed by the school, entered into a contract to suspend all administrative and judicial proceedings and to initiate no new proceedings until a mediation process was completed regarding the plaintiff's continued employment by the university; that the defendants breached this agreement by pursuing termination proceedings against the plaintiff; and that the plaintiff has sustained and will sustain economic and emotional damage as a result of that breach. The second count of the complaint was withdrawn on the date of the hearing.
I PRIOR PENDING CASE DOCTRINE
"The pendency of a prior suit of the same character, between the same parties brought to obtain the same end or object, is, at common law, good cause for abatement." Halpern v. Board of Education, 196 Conn. 647, 652 (1985). The doctrine permits a court to dismiss a later case that raises issues currently pending in another case before the court. Grimm v. Grimm, 74 Conn. App. 406, 411 (2002).
The court rejects the defendants' claim that this doctrine allows dismissal of this action for two reasons. First, the prior case on which the movants rely is a 42 U.S.C. § 1983 action filed in federal court, and asserts that the defendants' conduct has violated the plaintiff's constitutional rights to freedom of speech and due process. The case before the court attempts to enforce a contract and vindicate state common-law contract rights. Although the two actions were purportedly precipitated by the same or closely related acts by the defendants, the two suits seek different goals, and the satisfaction of different interests. Second, the rule permitting dismissal of a later action between the same parties is inapplicable to actions pending before different sovereigns. Schaefer v. OK Tool Co., 110 Conn. 528, 538 (1930); Sauter v. Sauter, 4 Conn. App. 581, 584 (1985); Barbouder v. Abdennur, 41 Conn. Sup. 258, 263 (1989). Consequently, dismissal is unwarranted under this doctrine.
II EXHAUSTION OF GRIEVANCE PROCEDURE
The failure to exhaust available employment grievance procedures deprives the trial court of subject matter jurisdiction. Hunt v. Prior, 236 Conn. 421, 431 (1996). However, under the peculiar facts of this case, what the plaintiff is alleging is the existence, in essence, of a contract between himself and the defendants to disengage from the otherwise available termination and grievance procedures. When evaluating a motion to dismiss, the court assumes the truth of the allegations pleaded and considers the reasonable and logical inferences which may be drawn from those assumed facts which are most favorable to the pleader. Hanna v. Capitol Region Mental Health Center, 74 Conn. App. 264, 267-68 (2002). Therefore, the court assumes that such an agreement was struck between the parties for purpose of this motion to dismiss.
To compel the plaintiff to utilize the very procedure which he avers the defendants agreed to eschew would defeat the purpose of the alleged contract. In other words, the contract which the plaintiff contends was breached eliminated any requirement that he exhaust administrative grievance remedies. Therefore, this ground fails to warrant dismissal.
III STANDING
Next, the defendants argue that the plaintiff lacks standing to bring this action. The absence of standing to sue implicates the jurisdiction of the court to hear and decide the matter. Steeneck v. University of Bridgeport, 235 Conn. 572, 580 (1995). Standing is a rule designed to ensure that the party initiating a lawsuit has a real interest in a genuine controversy. Windham Taxpayers Assn. v. Board of Selectman, CT Page 8814 234 Conn. 513, 525 (1995). Its purpose is not to keep aggrieved parties out of court. Id.
"Standing is established by showing that the party claiming it is authorized by statute or is classically aggrieved." Steeneck v. University of Bridgeport, supra, 578. The plaintiff makes no claim of statutory standing. The fundamental test for assessing classical aggrievement encompasses a "two-fold determination." Bethlehem Christian Fellowship v. Planning and Zoning Commission, 58 Conn. 441, 443 (2000). First, the plaintiff must successfully demonstrate a specific personal and legal interest in the matter, as distinguished from a general interest shared by members of the community at large. Id., 444. Then, the plaintiff must establish that that specific personal and legal interest was specially injured or impaired. Id. The plaintiff need not prove to a certainty that such injury has occurred, but merely that the possibility exists for such adverse impact. Id.
Here, the plaintiff alleges that the defendants broke a specific contract with him by pursuing his termination contrary to the suspension provision of that contract. The plaintiff may, ultimately, be unable to prove his case but his claim is one of a wrong that would impinge upon his specific personal and legal interest which aims to avoid damage to his reputation, employment, and financial status. Thus, the plaintiff is aggrieved by the purported breach of contract by the defendants and has standing to maintain this suit.
IV SOVEREIGN IMMUNITY
As noted above, "[a] motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." Hanna v. Capitol Region Mental Health Center, supra. This rule applies to claims of sovereign immunity. Id.
The state can act only through its officers, agents, or employees, and, therefore a suit against these parties in their official capacities is, in effect, against the state. Doe v. Heintz, 204 Conn. 17, 31 (1987). The sole remaining count unquestionably asserts a breach of contract by resumption or initiation of termination proceedings against the plaintiff on behalf of the university. The allegations demonstrate that the defendants are claimed to be acting so as to bind the plaintiff's employer, the University of Connecticut, and, therefore, are actions performed in their official capacities.
In the absence of legislative waiver of sovereign immunity, the court lacks jurisdiction to render a monetary award against state officials or employees, acting in the official capacity, unless the Claims Commissioner authorizes such a suit. Krozser v. New Haven, 212 Conn. 415, 420 (1989). It is undisputed that the plaintiff never sought nor obtained such authorization for the present action.
The prayer for relief only requests monetary damages. However, the last paragraph of the first count also sets forth a claim for injunctive relief. In cases where the petitioner seeks injunctive relief for unconstitutional behavior or violation of statutory authority, the doctrine of sovereign immunity must yield to the petitioner's right to rid himself or herself of the violation. Horton v. Meskill, 172 Conn. 615, 624 (1977); Doe v. Heintz, supra, 31.
In the present matter, however, the plaintiff asserts no constitutional or statutory transgression, having withdrawn the second count. He merely asserts a breach of contract. The question becomes whether sovereign immunity bars suits which seek injunctive relief based on contractual obligation rather than constitutional or statutory duties. In Krozser v. New Haven, supra, our Supreme Court stated, "[s]overeign immunity does not bar suits against state officials acting in excess of their statutory authority or pursuant to an unconstitutional statute. In addition, the state cannot use sovereign immunity as a defense in an action for declaratory or injunctive relief." Id. 421 (citations omitted).
The court's research discloses no appellate level case decided after Krozser, supra, which allowed a suit requesting injunctive relief, arising from nonconstitutional or nonstatutory grounds, to proceed in the face of a claim of sovereign immunity. Some trial courts have construed the above-quoted statement in Krozser, supra, to permit suit against state officials whenever injunctive relief is sought. See, e.g., Costa v. State, Superior Court, Fairfield J.D., d.n. 395567 (December 9, 2002), Levin, J.; Giunta v. Westport, Superior Court, Stamford, J.D., d.n. CV 98-167626, 32 Conn.L.Rptr. 232 (May 16, 2002), Lewis, J.T.R.; and Christiano v. State, Superior Court, Litchfield J.D., d.n. CV01-85093 (November 19, 2001), Cremins, J.
At least one decision has relegated this statement from Krozser, supra, to the realm of dicta and dismissed a claim for declaratory relief, which was not based on constitutional or statutory excesses, because of sovereign immunity. Simso v. State, Superior Court, Hartford J.D., d.n. CV02-819172 (April 7, 2003), Sheldon, J.
In Krozser, supra, the issue presented on appeal was whether sovereign immunity prohibited a monetary award of attorneys fees against the state. No injunction was requested, and, therefore, the Supreme Court's statement that sovereign immunity cannot be a defense to an action for injunctive relief was extraneous to the court's decision. Also, the statement in question cited as precedent for the proposition espoused the cases of Horton v. Meskill, supra, and Doe v. Heintz, supra, neither of which held that the doctrine of sovereign immunity was inapplicable in cases requesting injunctive relief beyond the class of cases where constitutional or statutory violations were alleged.
Significantly, in a case decided well after Krozser, supra, our Supreme Court rejected a claim of sovereign immunity stating, "[w]hen a state official's acts are in excess of legal authority or constitute an erroneous exercise of that 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 . . ." Pamela B. v. Ment, 244 Conn. 296, 328 (1998) (citations omitted). That decision neither cites Krozser, supra, nor states that sovereign immunity is inapposite generally in injunction cases. This would be a curious omission if the dictum in Krozser, supra, had vitality, especially because the Horton v. Meskill case, supra, was cited repeatedly in Pamela B. v. Ment, supra.
The court concludes that the proposition that sovereign immunity is inapplicable in all injunction cases contained in Krozser, supra, was dictum and did not expand the exception to sovereign immunity, which does apply to cases seeking declaratory or injunctive relief on constitutional or statutory grounds, as set forth in Horton v. Meskill, supra, and Doe v. Heintz, supra. Because the plaintiff makes no claim for relief based on constitutional or statutory violations, the state officials retain sovereign immunity in this case, and the court lacks subject matter jurisdiction to hear and determine this case claiming monetary damages and injunctive relief based on breach of contract. The motion to dismiss must, therefore, be granted.
Sferrazza, J.