Opinion
No. CV08-4031395 S
May 5, 2011
MEMORANDUM OF DECISION
PROCEDURAL HISTORY
The plaintiff, Billy G. Hunt, a self-represented individual, filed a six-count second amended complaint on December 12, 2008, against the defendant, Robert Brennan, a senior assistant state's attorney for the state of Connecticut. The following facts are alleged in this complaint.
The following action arises out of the issuance of a bond to secure Hunt's release following a guilty verdict on July 7, 2000, at the conclusion of a jury trial and the subsequent revocation of that bond, which led to Hunt's reincarceration. This action also arises out of Brennan's failure to seek restitution for Hunt at the sentencing of the bail bondsman, Robert Wilson, and his sister, Marjorie Wilson. On July 7, 2000, the Superior Court set Hunt's appeal bond at $1 million. "On July 8, 2000, [Hunt] and his family secured what they believed to be a valid bond in the amount of $650,000 and [Hunt] was released on said bond." On July 13, 2000, a hearing was held on the office of state's attorney's July 11, 2000 motion to revoke bond. At this hearing, "the State introduced fabricated, fraudulent and false evidence which showed that the bond agent (Robert Wilson) had exceeded the cumulative bail limits, as set by the state, permitted under his license." The court, Gill, J., nullified Hunt's bond.
The following facts are further alleged in the complaint. "[T]hrough an extensive investigation by Litchfield Superior Court State's Attorney['s] Office, Chief State Attorney's Office Bond Forfeiture Unit, Litchfield Superior Court GA 18, the Department of Public Safety, the State police Special Licensing and Firearms Unit, the Attorney General's Office, and other government state agencies, [and] municipalities into [Hunt's] invalid bond written by Robert Wilson" it was "determined and concluded that Robert Wilson and his sister, Marjorie Wilson `conspired' to wrongfully withhold `$31,500' from . . . Hunt and [Hunt's] [L]andcruiser vehicle." Robert Wilson and Marjorie Wilson were arrested by the state police in 2003 and were both charged with one count of larceny in the first degree and one count of conspiracy to commit larceny in the first degree for issuing the plaintiff's $650,000 appeal bond for a $30,000 premium and for Hunt's Landcruiser.
In addition the following facts are alleged in the complaint. The state discovered and then concluded that Robert Wilson exceeded his bond limit of $874,000 by over $3 million in defaulted bail bonds. The state also discovered and concluded that Marjorie Wilson exceeded her bond limit of $343,000 by $2,071,100 in defaulted bail bonds. The state determined and concluded that Robert Wilson and Marjorie Wilson "reported on a monthly basis inaccurate, false and/or fraudulent reports of bonds written against [their] assets and liabilities to the [s]tate of Connecticut [c]ommissioner of [p]ublic [s]afety and state police [s]pecial [l]icensing and [f]irearms unit and had exceeded their bond limits by way over [$2 million] . . . in excess defaulted bail bonds and illegally releasing hundreds of prisoners and detainees on defaulted bonds . . ." The Wilsons' actions with respect to the defaulted bail bonds led to Hunt's rearrest and reincarceration.
The following facts are further alleged in the second amended complaint. In 2000, Hunt sued the Wilsons to recover his $30,000 payment and Landcruiser. After a trial before the court, the court, DeMayo, J.T.R., entered judgment for Marjorie Wilson as the court concluded the plaintiffs' burden of proof in that action had not been met. The court found that Hunt was entitled to recover $16,000 from Robert Wilson and that the plaintiff's Landcruiser was to be returned to him.
The plaintiff further alleges that in 2005, about a year after Hunt received his judgment, Marjorie Wilson and Robert Wilson "pleaded guilty to conspiracy to wrongfully withholding [$31,500]" from Hunt. Brennan "acted personally outside [the] scope of his jurisdiction and/or in a manner not authorized by law when" he made certain statements during the sentencing hearings. At the sentencing hearing for Robert Wilson, Brennan stated that Hunt "received a civil judgment against Mr. Robert Wilson, that is the reason we're not asking for restitution. If he were to get restitution the State would have to proceed to attach it. That would entail another proceeding so the State is asking for a fine in the amount of [$17,000] from Mr. Wilson." At the sentencing hearing for Marjorie Wilson, Brennan stated: "She will pay a [$17,000] fine . . ."
"For the record there were [$31,500] wrongfully withheld by the [d]efendant from Mr. Billy Hunt who is presently incarcerated . . ."
"The [s]tate would simply ask you to impose the sentence with the fine, which is under the alternate fine section. The brother (Robert Wilson) paid [$17,000], and we're asking her to pay seventeen to the [c]lerk of the [c]ourt; and, that the money not be paid in restitution because Mr. Hunt has received a civil judgment against Mr. Wilson already. He tried to get one against Majorie [Wilson], and was unable to.
"Were we to ask for restitution, the [s]tate would have to have it go into special funds, and have a hearing. The [s]tate would have to pursue collecting the money because he is incarcerated.
"The [s]tate just requested the fine of [$17,000], to short cut it, to go directly to the [s]tate, which is more than these individuals wrongfully withheld from Mr. Hunt." The state did not allow Hunt to attend the sentencing hearings of either Robert Wilson or Marjorie Wilson. No mention at the sentencing hearing was made of the Landcruiser. Hunt did seek restitution via letter to the Superior Court.
Hunt alleges that "the defendant/the [s]tate is now wrongfully withholding [$31,500] and/or [$15,500] that is still due [Hunt] in addition to [Hunt's] $16,000 judgment said from [Hunt] in violation of [Hunt's] statutory rights under [General Statutes] § 18-85a and/or § 18-85b of the Connecticut General Statutes as well as [c]onstitutional rights to due process."
General Statutes § 18-85a is entitled: "Assessment of inmates for costs of incarceration. State's claim against inmate's property for repayment of costs of incarceration. Exempt property. Regulations."
General Statutes § 18-85b is entitled: "State's claim against proceeds of person's cause of action or person's inheritance for repayment of costs of incarceration."
Count one alleges that Brennan's and the state's "illegal acts and/or omissions" violated plaintiff's rights pursuant to the fifth and fourteenth amendments to the United States constitution. Count two alleges a violation of 42 U.S.C. § 1983 in that Brennan's and the state's "illegal acts and/or omissions" were in violation of Hunt's rights under 42 U.S.C. § 1983. Count three alleges a violation of the constitution of Connecticut in that the Brennans' and the state's "acts and/or omissions" violated Hunt's rights under article first, § 8, § 10 and § 20, of the constitution of Connecticut. Count four alleges unjust enrichment in that Brennan's and the state's "acts and/or omissions" unjustly enriched the state.
Title 42 of the United States Code, § 1983, provides: "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia."
Count five alleges a tortious conveyance of property. In count six, Hunt alleges mutual mistake in that Brennan "engaged in mutual mistake when he changed his position from restitution from Robert Anthony Wilson and Marjorie Wilson to a fine." Hunt also alleges that Hunt engaged in mutual mistake when he ignored victim services' position that Hunt was entitled to restitution and when he in effect changed the plea agreements of Robert Wilson and Marjorie Wilson to eliminate restitution.
Hunt is seeking, inter alia, a recovery of $31,500 and a return of the Landcruiser vehicle. The original complaint was filed on May 21, 2008, and served on Brennan on May 9, 2008. Appended to this complaint was a certified copy of the transcript of the sentencing hearing of Marjorie Wilson which was dated October 14, 2005 (exhibit A); and a copy of a portion of the General Statutes including § 18-85c (exhibit B).
On June 23, 2008, Brennan filed a motion to strike accompanied by a memorandum of law in support thereof. The ground for the motion to strike is that Brennan, "as a [s]enior [a]ssistant [s]tate's [a]ttorney, is immune from suit based on the doctrine of prosecutorial immunity." Hunt filed a request for leave to file an amended complaint pursuant to Practice Book § 10-59(a)(3) accompanied by his proposed first amended complaint. This amended complaint was accompanied by various documents. A request for leave to file a second amended complaint was filed pursuant to Practice Book § 10-60(a)(3) in addition to a proposed second amended complaint. As Brennan has not objected to this request, it is submitted that the second amended complaint is the operative complaint in this action pursuant to Practice Book § 10-60(a)(3).
Practice Book § 10-59 does not have a (3). Practice Book § 10-59 provides: "The plaintiff may amend any defect, mistake or informality in the writ, complaint or petition and insert new counts in the complaint, which might have been originally inserted therein, without costs, during the first thirty days after the return day. (See General Statutes § 52-128 and annotations.)" While this request to amend was filed more than thirty days after the return date, Practice Book § 10-60 provides in relevant part: "(a) Except as provided in Section 10-66, a party may amend his or her pleadings or other parts of the record or proceedings at any time subsequent to that stated in the preceding section in the following manner:
"(1) By order of judicial authority; or
"(2) By written consent of the adverse party; or
"(3) By filing a request for leave to file such amendment, with the amendment appended, after service upon each party as provided by Sections 10-12 through 10-17, and with proof of service endorsed thereon. If no objection thereto has been filed by any party within fifteen days from the date of the filing of said request, the amendment shall be deemed to have been filed by consent of the adverse party. If an opposing party shall have objection to any part of such request or the amendment appended thereto, such objection in writing specifying the particular paragraph or paragraphs to which there is objection and the reasons therefor, shall, after service upon each party as provided by Sections 10-12 through 10-17 and with proof of service endorsed thereon, be filed with the clerk within the time specified above and placed upon the next short calendar list." Hunt has certified that he has sent copies of the request to amend and the proposed amended complaint to Brennan's counsel and Brennan did not object to the request.
Hunt failed to file a memorandum in opposition to the motion to strike. No oral arguments were held on the motion. Brennan did not file a new motion to strike in response to Hunt's second amended complaint. Pursuant to Practice Book § 10-61, it is submitted that the court apply the motion to strike to the second amended complaint.
Practice Book § 10-61 provides: "When any pleading is amended the adverse party may plead thereto within the time provided by Section 10-8 or, if the adverse party has already pleaded, alter the pleading, if desired, within ten days after such amendment or such other time as the rules of practice, or the judicial authority, may prescribe, and thereafter pleadings shall advance in the time provided by that section. If the adverse party fails to plead further, pleadings already filed by the adverse party shall be regarded as applicable so far as possible to the amended pleading."
DISCUSSION
Practice Book § 10-39(a) provides in relevant part: "Whenever any party wishes to contest . . . the legal sufficiency of the allegations of any complaint, counterclaim or cross claim, or of any one or more counts thereof, to state a claim upon which relief can be granted . . . that party may do so by filing a motion to strike the contested pleading or part thereof." "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . Moreover . . . [w]hat is necessarily implied [in an allegation] need not be expressly alleged . . . It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted . . . Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252-53, 990 A.2d 206 (2010).
There has been discussion in the Connecticut courts as to the appropriate procedural vehicle for raising the issue of prosecutorial immunity. The Superior Court has stated: "The threshold issue in the present case is whether absolute prosecutorial immunity, a special defense, can be raised on a motion to strike. While Connecticut courts have not ruled definitively on the propriety of raising absolute immunity on a motion to strike, the courts have addressed the propriety of using a motion to strike to raise other special defenses such as governmental immunity, statute of limitations and absolute privilege.
"There is clearly a split of authority on whether a Motion to Strike is appropriate; or whether to raise a special defense subject to Motion for Summary Judgment (see e.g. Westport Taxi [Service, Inc. v. Westport Transit District], 235 Conn. 1, 24, 664 A.2[d] 719 (1995)." Barese v. Clark, Superior Court, judicial district of New Haven, Docket No. CV 96 0389890 (November 6, 1996, McMahon, J.) ( 18 Conn. L. Rptr. 195-96).
In Barese v. Clark, supra, 18 Conn. L. Rptr. 196, the court stated that the issue of which motion to bring was of "no moment, because the defendant would fail under either theory." The court denied the motion to strike after analyzing the substance of the ground of prosecutorial immunity. Id., 196-97. Subsequently, in Barese v. Clark, Superior Court, judicial district of New Haven, Docket No. CV 96 0389890 (September 1, 1999, Jones, J.) ( 25 Conn. L. Rptr. 354, 355), the issue of prosecutorial immunity was raised on a motion for summary judgment, which the court granted, and the Appellate Court affirmed that decision in Barese v. Clark, 62 Conn.App. 58, 773 A.2d 946 (2001).
In Westport Taxi Service, Inc., a case cited by Barese v. Clark, supra, 18 Conn. L. Rptr. 196, the court stated with regard to reviewing the issue of governmental immunity when not raised as a special defense: "We have previously determined that governmental immunity must be raised as a special defense in the defendant's pleadings. Gauvin v. New Haven, CT Page 10870 187 Conn. 180, 184-85, 445 A.2d 1 (1982). Governmental immunity is essentially a defense of confession and avoidance similar to other defenses required to be affirmatively pleaded [under Practice Book § 164] [now § 10-50] . . . The purpose of requiring affirmative pleading is to apprise the court and the opposing party of the issues to be tried and to prevent concealment of the issues until the trial is underway . . . Id., 185. In this case, the defendant did not specially plead any immunity defense — absolute or qualified.
"In certain limited circumstances, an appellate court will address the issue of whether governmental immunity is available to a defendant where the defense was not specially pleaded. If the question of governmental immunity was fully litigated at trial, without objection from the plaintiff, the plaintiff is deemed to have waived its objection to the requirement that the defense be specially pleaded. Id., 184." (Internal quotation marks omitted.) Westport Taxi Service, Inc. v. Westport Transit District, supra, 235 Conn. 24-25. In Westport Taxi Service, Inc., the issue of governmental immunity was not raised at trial by the defendant and the court stated that it could not be deemed that the plaintiff waived its objection. Westport Taxi Service, Inc. v. Westport Transit District, supra, 25.
In another case, the Superior Court stated: "The defendant correctly acknowledges that our appellate courts have not expressly determined that the question of whether a defendant is entitled to absolute immunity implicates the subject matter jurisdiction of the court. Nevertheless, this court agrees with the several judges of the Superior Court who have decided that the question does pertain to subject matter jurisdiction based on a determination that the decision of the Connecticut Supreme Court in Chada v. Charlotte Hungerford Hospital, 272 Conn. 776, 865 A.2d 1163 (2005), supports a conclusion that [the issue] does [pertain to subject matter jurisdiction]. Day v. Smith, Superior Court, judicial district of New Haven, Docket No. CV 07 4027999 (February 11, 2008, Bellis, J.). In [ Chada], the [court] held that a motion for summary judgment [that was] granted on the basis of [a party's] absolute immunity [from prosecution for defamation] is a final judgment for purposes of appeal because the purposes of the absolute immunity afforded participants in judicial and quasi-judicial proceedings is the same as the purpose of the sovereign immunity [conferred upon states] . . . that is, to protect against the threat of suit . . . Id., 787. Accordingly, because the doctrine of absolute immunity shares with sovereign immunity the same purpose of protection against having to litigate at all, and because the doctrine of sovereign immunity implicates subject matter jurisdiction, this court joins the other Superior Courts that have held absolute immunity to be properly considered in a motion to dismiss Day v. Smith, supra, Superior Court, Docket No. CV 07 4027999. See also Hanton v. Gworek, Superior Court, judicial district of New Haven, Docket No. CV 09 5027787 (November 12, 2009, Corradino, J.) (issue of defendant's entitlement to absolute judicial immunity implicates subject matter jurisdiction and is properly raised in motion to dismiss)." Damato v. Thomas, Superior Court, judicial district of New Haven, Docket No. CV 09 5030385 (June 2, 2010, Peck, J.) [ 50 Conn. L. Rptr. 112].
In Leseberg v. O'Grady, 115 Conn.App. 18, 21 n. 3, 971 A.2d 86, cert. denied, 293 Coun. 918, 978 A.2d 1110 (2009), a case cited by the court in Damato v. Thomas, supra, Superior Court, Docket No. CV 09 5030385, the Leseberg court stated: "Frequently, a motion to dismiss contests the jurisdiction of the court. See Practice Book § 10-30; Filippi v. Sullivan, 273 Conn., 1, 8, 866 A.2d 599 (2005). The issue of whether a motion to dismiss on the ground of judicial immunity is jurisdictional was raised but not decided in Carrubba v. Moskowitz, 274 Conn. 533, 877 A.2d 773 (2005). We similarly do not need to decide the issue in the context of this case." Leseberg v. O'Grady, supra, 21 n. 3.
In Damato v. Gailor, Superior Court, judicial district of Hartford, Docket No. CV 10 5034878 (March 9, 2011, Robaina, J.), and Diaz v. Palmese, Superior Court, judicial district of New Britain, Docket No. CV 10 5015049 (November 22, 2010, Young, J.), for example, the Superior Court addressed the issue of prosecutorial immunity raised in a motion to dismiss. In Harris v. Coppetto, Superior Court, judicial district of Hartford, Docket No. CV 05 4013059 (August 15, 2006, Rittenband, J.T.R.) and Brook v. Zingaro, judicial district of Fairfield, Docket No. CV 01 0403510 (September 6, 2005, Hiller, J.) the court analyzed the issue of prosecutorial immunity raised in a motion to strike. In the present case, it is submitted that it is appropriate for this court to address the issue of prosecutorial immunity in Brennan's motion to strike given that the Superior Court has done so on other occasions in the absence of definitive appellate authority on this matter and Hunt has not raised any objection to use of this procedural vehicle.
Brennan first addresses Hunt's 42 U.S.C. § 1983 claim, arguing that "[t]he law is well established that a state prosecutor is entitled to absolute immunity and is not subject to suit under 42 U.S.C. § 1983 when he acts within the scope of his duties in initiating and pursuing a criminal prosecution." According to Brennan, this immunity is applicable to all activities which could be fairly characterized as closely pertaining to litigation. Brennan asserts that the negotiation of plea agreements and the decision to not seek restitution from criminal defendants are matters in which he was acting in his prosecutorial capacity. Therefore, it is Brennan's position that he "is entitled to absolute immunity."
Brennan also maintains that Hunt's claims under the constitution of Connecticut and common law also fail as "[t]he Connecticut Supreme Court has held that Connecticut law grants state prosecutors immunity for civil actions." According to Brennan, to that end, "any plea offers or recommendations made by a prosecutor in the context of a prosecution is an `integral part of the judicial process' entitling the defendant to absolute immunity."
"Prosecutorial immunity derives from the immunity attached to judicial proceedings. See Burns v. Reed, 500 U.S. [478], 111 S.Ct. 1934, 1938, 114 L.Ed.2d 547 (1991). `The judge on the bench must be free to administer the law under the protection of the law, independently and freely, without fear of consequences. No such independence could exist if he were in daily apprehension of having an action brought against him, and his administration of justice submitted to the opinion of a jury.' W. Prosser W. Keeton, Torts (5th Ed.) § 114, p. 816. Were he not immune, "`no man but a beggar or a fool would be a judge'"; id., n. 8, quoting Miller v. Hope, 2 Shaw, Sc.App.C App. Cas. 125 (1824); because in every suit there is a loser eager to avenge his loss, and in every unsuccessful prosecution there is an accused eager to exact a penalty for his ordeal. See Forrester v. White, 484 U.S. 219, 225, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988); Mitchell v. Forsyth, 472 U.S. 511, 521, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985); Butz v. Economou, 438 U.S. 478, 515, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978); Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 348, 20 L.Ed. 646 (1872); Spring v. Constantino, 168 Conn. 563, 565, 362 A.2d 871 (1975); Phelps v. Sill, 1 Day 315, 329 (1804).
"The mantle of judicial immunity covers not only judges, but all adjuncts to the judicial process. In particular, prosecutors are immune from tort liability for their conduct as participants in the judicial proceeding. See Burns v. Reed, supra, 1939; Imbler v. Pachtman, 424 U.S. 409, 422-24, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976); Spring v. Constantino, supra, 565; cf. 4 Restatement (Second), Torts § 895D, comment (c) (the immunity extended to public officials such as a prosecuting attorney may not apply to his improper motive). Prosecutorial immunity from suits for malicious prosecution and defamation arose from the similar `concern that harassment by unfounded litigation would cause a deflection of the prosecutor's energies from his public duties, and the possibility that he would shade his decisions instead of exercising the independence of judgment required by his public trust.' Imbler v. Pachtman, supra, 423. "`The key to the immunity . . . held to be protective to the prosecuting attorney is that the acts, alleged to have been wrongful, were committed by the officer in the performance of an integral part of the judicial process.'" Spring v. Constantino, supra, quoting Robichaud v. Ronan, 351 F.2d 533, 536 (9th Cir. 1965)." DeLaurentis v. New Haven, 220 Conn. 225, 242, 597 A.2d 807 (1991).
"Our Supreme Court, the United States Supreme Court and the federal courts of appeal have long recognized the existence of, and the need for, prosecutorial immunity. Such immunity exists to allow prosecutors at the state and federal level to be free to perform their essential role in the judicial process without the possibility of civil liability hanging over their head as a sword of Damocles.
"The United States Supreme Court addressed the issue of a state prosecutor's amenability to suit under 42 U.S.C. § 1983 in Imbler v. Pachtman, [ supra, 424 U.S. 409]. Although that case arose under CT Page 10861 42 U.S.C. § 1983 and not under state common law, the court engaged in an extensive discussion concerning the existence of common-law immunities for prosecutors, the question at issue here. The court did so because it previously had held in Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951), that `immunities well grounded in history and reason had not been abrogated by covert inclusion in the general language of § 1983.' . . . Imbler v. Pachtman, supra, 418, quoting Tenney v. Brandhove, supra, 376. As the court in Imbler stated: `The decision in Tenney established that § 1983 is to be read in harmony with general principles of tort immunities and defenses rather than in derogation of them.' Imbler v. Pachtman, supra, 418."
"To allow a prosecutor to be subject to suit for actions performed as an integral part of the judicial process `would open the way for unlimited harassment and embarrassment of the most conscientious officials by those who would profit thereby. There would be involved in every case the possible consequences of a failure to obtain a conviction. There would always be a question of possible civil action in case the prosecutor saw fit to move dismissal of the case . . . The apprehension of such consequences would tend toward great uneasiness and toward weakening the fearless and impartial policy which should characterize the administration of this office. The work of the prosecutor would thus be impeded and we would have moved away from the desired objective of stricter and fairer law enforcement.' Pearson v. Reed, 6 Cal.App.2d 277, 287, 44 P.2d 592 (1935).
"Because the court stated in Imbler that the immunity of prosecutors derived from that of judges, some discussion about the contours of the latter type of immunity is necessary. The court explained this immunity, as well as its connection with that of prosecutors. `The immunity of a judge for acts within his jurisdiction has roots extending to the earliest days of the common law. See Floyd v. Barker, 12 Coke 23, 77 Eng. Rep. 1305 (1608). Chancellor Kent traced some of its history in Yates v. Landing, 5 Johns. 282 (N.Y. 1810), and this Court first accepted the rule of judicial immunity in Bradley v. Fisher, [ 80 U.S.] (13 Wall.) 335, [ 20 L.Ed. 646] (1871) . . . Courts that have extended the same immunity to the prosecutor have sometimes remarked on the fact that all three officials — judge, grand juror, and prosecutor — exercise a discretionary judgment on the basis of evidence presented to them. Smith v. Parman, [ 101 Kan. 115, 165 P. 663 (1917)]; Watts v. Gerking, [ 111 Ore. 641, 228 P. 135 (1924)]. It is the functional comparability of their judgments to those of the judge that has resulted in . . . prosecutors being referred to as "quasi-judicial" officers, and their immunities being termed "quasi-judicial" as well.' . . . Imbler v. Pachtman, supra, 424 U.S. 423 n. 20. The court concluded its discussion by stating: `The common-law rule of immunity is thus well settled.' Id., 424." Barese v. Clark, 62 Conn.App. 58, 61-63, 773 A.2d 946 (2001).
With regard to whether prosecutorial immunity is qualified or absolute, "the court in Imbler explained: `If a prosecutor had only a qualified immunity, the threat of § 1983 suits would undermine performance of his duties no less than would the threat of common-law suits for malicious prosecution. A prosecutor is duty bound to exercise his best judgment both in deciding which suits to bring and in conducting them in court. The public trust of the prosecutor's office would suffer if he were constrained in making every decision by the consequences in terms of his own personal liability in a suit for damages. Such suits could be expected with some frequency, for a defendant often will transform his resentment at being prosecuted into the ascription of improper and malicious actions to the State's advocate . . . Further, if the prosecutor could be made to answer in court each time such a person charged him with wrongdoing, his energy and attention would be diverted from the pressing duty of enforcing the criminal law.' . . . Id., 424-25."
"The court concluded: `[T]he considerations outlined above dictate the same absolute immunity under § 1983 that the prosecutor enjoys at common law. To be sure, this immunity does leave the genuinely wronged defendant without civil redress against a prosecutor [who acts] malicious[ly] or dishonest[ly] . . . But the alternative of qualifying a prosecutor's immunity would disserve the broader public interest. It would prevent the vigorous and fearless performance of the prosecutor's duty that is essential to the proper functioning of the criminal justice system. Moreover, it often would prejudice defendants in criminal cases by skewing post-conviction judicial decisions that should be made with the sole purpose of insuring justice.' . . . Id., 427-28. The court also noted: `[W]e find ourselves in agreement with Judge Learned Hand, who wrote of the prosecutor's immunity from actions for malicious prosecution: "As is so often the case, the answer must be found in a balance between the evils inevitable in either alternative . . . [I]t has been thought in the end better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation." Gregoire v. Biddle, 177 F.2d 579, 581 ([2d Cir.] 1949), cert. denied, 339 U.S. 949 [ 70 S.Ct. 803, 94 L.Ed. 1363] (1950).' Imbler v. Pachtman, supra, 424 U.S. 428. The court concluded that `in initiating a prosecution and in presenting the State's case, the prosecutor is immune from a civil suit for damages . . .' Id., 431.
"The doctrine of absolute prosecutorial immunity applies to civil rights suits brought under 42 U.S.C. § 1983, see Imbler v. Pachtman, [ supra, 424 U.S. 409], as well as state law claims, see Massameno v. Statewide Grievance Committee, 234 Conn. 539, 563, 567, 663 A.2d 317 (1995)." Marczeski v. Handy, 213 F.Sup.2d 135, 140-41 (D.Conn. 2002).
"In the years following the Supreme Court's decision in Imbler, which set forth the contours of prosecutorial immunity, the United States Supreme Court has had occasion to fill in the outline set forth in Imbler. Summarizing Imbler a decade and one-half later, the United States Supreme Court stated: `[P]rosecutors are absolutely immune from liability . . . for their conduct in initiating a prosecution and in presenting the State's case . . . insofar as that conduct is intimately associated with the judicial phase of the criminal process . . . It was recognized . . . that the duties of the prosecutor in his role as advocate for the State involve actions preliminary to the initiation of a prosecution and actions apart from the courtroom.' . . . Burns v. Reed, 500 U.S. 478, 486, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991).
"Our Supreme Court has relied on these and other United States Supreme Court cases, as well as cases from federal courts of appeal, as providing support for the existence of prosecutorial immunity from civil actions in state court. `It is in part due to the recognition that prosecutors are an integral part of the judicial system that courts have granted absolute immunity from civil actions to prosecutors. Malley v. Briggs, 475 U.S. 335, 342, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986); Imbler v. Pachtman, [ supra, 424 U.S. 420] . . . Such immunity covers acts that were performed by a prosecutor as an integral part of the judicial process.' Massameno v. Statewide Grievance Committee, 234 Conn. 539, 567-68, 663 A.2d 317 (1995)." (Emphasis in original.) Barese v. Clark, supra, 62 Conn.App. 63-65. Therefore, it is submitted that, as stated by the Appellate Court in Barese, prosecutorial immunity is applicable to both 42 U.S.C. § 1983 and state law claims.
The United States Court of Appeals for the Second Circuit analyzed which functions of a prosecutor afforded him or her absolute immunity and which functions provided him or her with qualified immunity to aid the court in determining whether a prosecutor's actions with regard to plea negotiations provided absolute or qualified immunity and stated: " Imbler provided the basis for the development of a functional approach to the immunity question. The Court held that absolute immunity from § 1983 liability exists for those prosecutorial activities `intimately associated with the judicial phase of the criminal process . . .' Id. at 430, 96 S.Ct. at 994; Butz v. Economou, 438 U.S. 478, 510-11, 98 S.Ct. 2894, 2912-13, 57 L.Ed.2d 895 (1978). These protected `quasi-judicial' activities, Forsyth v. Kleindienst, 599 F.2d 1203, 1214-15 (3d Cir. 1979), include the initiation of a prosecution and the presentation of the Government's case. Imbler, supra, 424 U.S. at 431, 96 S.Ct. at 995.
"Absolute protection does not extend, however, to a prosecutor's investigative or administrative acts, id. at 431 n. 33, 96 S.Ct. at 995 n. 33. Accordingly, we have recognized that where prosecutors act in this capacity, only the qualified `good faith' immunity that protects, for example, police officers, is available. Lee v. Willins, 617 F.2d 320, 321-22 (2d Cir.), cert. denied, [449] U.S. [861], 101 S.Ct. 165, 66 L.Ed.2d 78 (1980); see also Hampton v. Hanrahan, 600 F.2d 600, 631-32 (7th Cir. 1979), rev'd in part on other grounds, 446 U.S. 754, 100 S.Ct. 1987, 64 L.Ed. 2d 670 (1980) (per curiam).
"The task of determining whether a particular activity is better characterized as `quasi-judicial' and subject to absolute immunity, or `investigative' and subject to only qualified `good faith' immunity requires more than the mechanical application of labels. An examination of the functional nature of prosecutorial behavior, rather than the status of the person performing the act, is determinative. Imbler, supra, 424 U.S. at 430, 96 S.Ct. at 994; Briggs v. Goodwin, 569 F.2d 10, 21 (D.C. Cir. 1977), cert. denied, 437 U.S. 904, 98 S.Ct. 3089, 57 L.Ed.2d 1133 (1978). Thus, a prosecutor is insulated from liability where his actions directly concern the pre-trial or trial phases of a case. For example, the swearing of warrants to insure a witness's attendance at trial, Daniels v. Kieser, 586 F.2d 64 (7th Cir. 1978), cert. denied, 441 U.S. 931, 99 S.Ct. 2050, 60 L.Ed.2d 659 (1979), the falsification of evidence and the coercion of witnesses, Lee v. Willins, supra, or the failure to drop charges until immediately before trial, Halpern v. City of New Haven, 489 F.Sup. 841, 843 (D.Conn. 1980) have been held to be prosecutorial activities for which absolute immunity applies. Similarly, because a prosecutor is acting as an advocate in a judicial proceeding, the solicitation and subornation of perjured testimony, the withholding of evidence, or the introduction of illegally-seized evidence at trial does not create liability in damages. Lofland v. Meyers, 442 F.Sup. 955, 958 (S.D.N.Y. 1977). The rationale for this approach is sound, for these protected activities, while deplorable, involve decisions of judgment affecting the course of a prosecution. The efficient, and just, performance of the prosecutorial function would be chilled if Government attorneys were forced to worry that their choice of trial strategy and tactics could subject them to monetary liability, or at best, the inconvenience of proving a `good faith' defense to a § 1983 action.
"In contrast, activities in which a prosecutor engages that are independent of prosecution, Lee v. Willins, supra, 617 F.2d at 322, are not protected by the doctrine of absolute immunity. For example, only a `good faith' immunity is available where a prosecutor testifies falsely as a witness, Briggs, supra, distributes extraneous statements to the press designed to harm a suspect's reputation, Helstoski v. Goldstein, 552 F.2d 564 (3d Cir. 1977) (per curiam); Martin v. Merola, 532 F.2d 191, 195-98 (2d Cir. 1976) (per curiam) (Lumbard, J., concurring), or participates in an illegal search that violates a suspect's Fourth Amendment rights, Hampton, supra, 600 F.2d at 632; Lofland, supra, 442 F.Sup. at 958.
"Decisions to engage in conduct of this character are not directly related to the delicate judgments prosecutors must make concerning the development of the Government's case. The `investigatory' and `administrative' work involved in testifying before a grand jury, accumulating evidence, and disseminating information to the press is analogous to the tasks performed by the police, and therefore only the same qualified `good faith' immunity is available.
"This functional approach requires us to evaluate plea bargaining in light of the general purpose of the absolute immunity doctrine. Judge Griesa properly recognized that the purpose of the doctrine `is to insure that a prosecutor will perform his difficult function with complete vigor and independence, undeterred by the spector of liability for damages with respect to his activities.' Taylor v. Kavanagh, supra, 492 F.Sup. at 389. Learned Hand has told us that the doctrine we apply today supports the just administration of the criminal law, for we all would suffer if prosecutors `who try to do their duty [were subject] to the constant dread of retaliation.' Gregoire v. Biddle, [177 F.2d supra, 581]. The threat of § 1983 liability would inhibit prosecutors from exercising independent judgment and would divert their attention from the immediate matters at hand. See generally Imbler, supra, 424 U.S. at 424-29, 96 S.Ct. at 992-94.
"We are satisfied that a prosecutor's activities in the plea bargaining context merit the protection of absolute immunity. The plea negotiation is an `essential component' of our system of criminal justice, Santobello v. New York, 404 U.S. 257, 260, 92 S.Ct. 495, 497, 30 L.Ed.2d 427 (1971). See generally American Bar Association Project on Standards for Criminal Justice, Pleas of Guilty (Approved Draft 1968). It is at this stage that the prosecutor evaluates the evidence before him, determines the strength of the Government's case, and considers the societal interest in disposing of the case by a negotiated guilty plea. The effective negotiation of guilty pleas would be severely chilled if a prosecutor were constantly concerned with the possibility of ruinous personal liability for judgments and decisions made at this critical stage of the criminal process." Taylor v. Kavanagh, 640 F.2d 450, 452-53 (2d Cir. 1981).
With regard to prosecutorial immunity applying to the sentencing phase of a criminal proceeding, our Appellate Court stated: "One cannot seriously question that the sentencing hearing is part of `the judicial phase of the criminal process.' Several of our rules of procedure amply demonstrate this fact. These rules provide that the right to appeal from the trial court's judgment of conviction accrues only upon sentencing. `[I]t shall be the duty of the clerk of the court, immediately after the pronouncement of the sentence . . . to advise the defendant in writing of such rights as such defendant may have to an appeal . . .' Practice Book § 43-30. `In criminal cases where the appeal is from a judgment of conviction, the appeal period shall begin when sentence is pronounced in open court . . .' Practice Book § 63-1(b). It follows that the sentencing hearing, a proceeding preliminary to the imposition of sentence, is part of the judicial phase of the criminal process. Accordingly, the cloak of prosecutorial immunity protects the defendant's actions in that hearing." (Emphasis in original.) Barese v. Clark, supra, 62 Conn.App. 66.
In Barese, the plaintiff, who was at her home at the time, was an assault, robbery and burglary victim. Barese v. Clark, supra, 62 Conn.App. 59. While committing those crimes, the intruder bit the plaintiff and broke her skin. Id. An assistant state's attorney, the defendant in Barese, was successful in prosecuting the assailant for those crimes as well as other crimes, which resulted in a lengthy prison sentence. Id., 58-59. The day before the sentencing of the assailant, the plaintiff and defendant had a telephone conversation where the plaintiff agreed to meet the defendant at his office before the sentencing hearing. Id., 59. At this meeting, the defendant showed the plaintiff a presentence investigation (PSI) report which included the assailant's statement that he was HIV positive at the time the incident occurred. Id. The defendant told the plaintiff that he did not believe this statement and that he would not disclose the information. Id.
At the sentencing hearing, the defendant revealed the assailant's statement that he was HIV positive and the plaintiff subsequently brought an action alleging a breach of privacy, fraud and intentional infliction of emotional distress. Id., 60. The defendant moved for summary judgment on the basis that the activities that gave rise to the Barese action were performed by him as an assistant state's attorney, thereby providing him with immunity from civil liability for those actions. Id. The trial court granted the motion for summary judgment and the plaintiff appealed. Id.
On appeal, the plaintiff argued that prosecutorial immunity should not extend to the assistant state's attorney's actions as "the acts she complains of, namely, the defendant's meeting with the plaintiff prior to the sentencing hearing and then his statements to the court in the sentencing hearing were not part of the defendant's role as an assistant state's attorney, but were `surplusage to the prosecutor's role as an advocate.'" Id., 65-66.
The Appellate Court further held that the PSI report containing the assailant's statement that he was HIV positive is part of the judicial process itself as Practice Book §§ 43-3 through 43-10 pertain to the preparation and use of the PSI report for the sentencing process. Barese v. Clark, supra, 62 Conn.App. 66. The Appellate Court held Practice Book § 43-10(1) "envision[ed] that the court will rely on the PSI report in determining the sentence to impose." Barese v. Clark, supra, 62 Conn.App. 67. The Appellate Court further held that "[t]he defendant's actions at the sentencing hearing, in which he undertook to explain the PSI report relied on by the judicial authority, are, therefore, an integral part of the judicial process.
"Because the hearing at which the defendant made the statements that are at the root of the plaintiff's claim was `intimately associated with the judicial phase of the criminal process;' . . . Burns v. Reed, supra, 500 U.S. 486; we conclude that the mantle of prosecutorial immunity protected the defendant throughout that hearing." (Emphasis in original.) Barese v Clark, supra, 62 Conn.App. 67. The Appellate Court thus affirmed the judgment of the trial court. Id., 67.
Pursuant to Taylor, which relates to plea negotiations and Barese, which pertains to sentencing, Brennan's actions in not seeking restitution for Hunter in conjunction with the sentencing of Robert Wilson and Marjorie Wilson are protected by prosecutorial immunity. Therefore, counts two, three, four, five and six should be stricken as count two is a claim pursuant to 42 U.S.C. § 1983, count three is a claim pursuant to the constitution of Connecticut and counts three, four, five and six are state common-law claims.
Brennan has not specifically addressed count one, a claim pursuant to the fifth and fourteenth Amendments to the United States constitution, in his memorandum in support of his motion to strike. The court is "not required to review issues that have been improperly presented to [the] court through an inadequate brief . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly." (Internal quotation marks omitted.) Hogan v. Dept. of Children and Families, 290 Conn. 545, 578, 964 A.2d 1213 (2009). Nevertheless, given that "[i]n 42 U.S.C. § 1983, Congress has created a federal cause of action for the `deprivation of any rights, privileges, or immunities secured by the Constitution and laws,'" Castle Rock v. Gonzales, 545 U.S. 748, 755, 125 S.Ct. 2796, 162 L.Ed.2d 658 (2005) so that 42 U.S.C. § 1983 is the vehicle for plaintiffs such as Hunt to pursue claims pursuant to the fifth and fourteenth amendment to the United States constitution, Brennan's arguments in the memorandum in support of the motion to strike that pertain to counts two through six also can be applied to count one. Therefore, count one of the operative complaint should be stricken as well.
CONCLUSION
For the foregoing reasons, the motion to strike is granted in its entirety.