Opinion
DBDCV195014581S
10-08-2019
Channy Nee KUHTH v. STATE of Connecticut et al.
UNPUBLISHED OPINION
OPINION
D’Andrea, Robert A., J.
The plaintiff, Channy Nee Khuth ("plaintiff") filed a petition for new trial pursuant to General Statutes § § 52-270 and 52-582(b), and Practice Book § 42-55, dated November 21, 2018, for a new trial based on newly discovered scientific evidence and social science evidence which recognizes that eighteen-year-old individuals should be treated differently from mature adults. The plaintiff also requests that the court appoint counsel to represent him in his petition for a new trial. The defendants are the State of Connecticut State’s Attorney for the Judicial District of Danbury, the Chief State’s Attorney’s Office, and the Attorney General Office State of Connecticut. Pursuant to Practice Book § 10-39, the defendants filed a motion to strike dated April 2, 2019. The defendants move to strike the complaint against them, claiming that the petition for a new trial lies only against the State of Connecticut, and not the individual defendants. The plaintiff filed a response to defendants’ motion to strike dated April 15, 2019, claiming that he properly served the State of Connecticut through each agency that is authorized to accept service, therefore, the motion to strike should be denied.
FACTS
On November 21, 2018, the plaintiff filed a petition for a new trial pursuant to General Statutes § § 52-270 and 52-582(b) and Practice Book § 42-55, regarding newly discovered "scientific" evidence, including "scientific knowledge," which he alleges includes knowledge of general scientific community and fields of scientific knowledge upon which those fields or disciplines rely. Plaintiff further alleges that § 52-582 and Senate Bill 504 allows for additional exceptions to the three-year statute of limitation for petitioning for a new trial, and, in addition, to allow for appointment of counsel pursuant to § 51-296. As part of his service of the summons and complaint, the plaintiff served the State of Connecticut State’s Attorney for the Judicial District of Danbury, the Chief State’s Attorney’s Office, and the Attorney General Office State of Connecticut. The plaintiff filed a response to defendants’ motion to strike dated April 15, 2019.
By way of background, the plaintiff is a sentenced prisoner, serving a long sentence for several charges. On August 4, 2004, the plaintiff and others were involved in an attack on two young men, causing serious injuries to both. In 2005, the plaintiff was convicted after trial of assault in the first degree, in violation of General Statutes § 53a-59(a)(4), conspiracy to commit assault in the first degree in violation of General Statutes § § 53a-48 and 53a-59(a)(4) and two counts of assault in the first degree as an accessory, in violation of General Statutes § § 53a-8 and 53a-59(a)(4). The plaintiff was sentenced by the trial court, Schuman, J., to a net effective sentence of thirty years’ incarceration followed by five years of probation. This matter was heard by the court on two occasions, where the defendant participated on said occasions via video conferencing from the corrections center where he is serving his sentence.
LEGAL STANDARD
"[U]nder Practice Book § § 10-39(a) and 11-3, the exclusive remedy for ... nonjoinder of indispensable parties, is by motion to strike." Bender v. Bender, 292 Conn. 696, 722 n. 23, 975 A.2d 636 (2009). "A party is deemed necessary if its presence is absolutely required in order to assure a fair and equitable trial." (Internal quotation marks omitted.) In re Devon B., 264 Conn. 572, 580, 825 A.2d 127 (2003). "When the complaint alleges all facts necessary to show that a party not joined is necessary to the action, [a motion to strike] is ... used to raise a defect apparent on the face of the pleadings. 1 E. Stephenson, Connecticut Civil Procedure (2d Ed.1970) § 105, pp. 430-31." (Emphasis omitted; internal quotation marks omitted.) Pelletier Mechanical Services, LLC v. G&W Management, Inc., 162 Conn.App. 294, 302, 131 A.3d 1189, cert. denied, 320 Conn. 932, 134 A.3d 622 (2016). "Parties are indispensable only when their interest in the controversy is such that a final decree cannot be made without either affecting that interest or leaving the controversy in such condition that its final disposition may be inconsistent with equity and good conscience." (Internal quotation marks omitted.) Bender v. Bender, supra, 724; see also South Windsor Cemetery Assn., Inc. v. Lindquist, 114 Conn.App. 540, 553, 970 A.2d 760 (defendant waived claim of nonjoinder by failing to file motion to strike), cert. denied, 293 Conn. 932, 981 A.2d 1076 (2009). "[T]he exclusive remedy for misjoinder of parties ... is by motion to strike." Bender v. Bender, supra, 292 Conn. 722 n.23; see also Practice Book § 11-3. "Naming an improper person as a party in a legal action constitutes misjoinder." (Internal quotation marks omitted.) Bloom v. Milkovich, 111 Conn.App. 323, 329, 958 A.2d 1283 (2008). "The nonjoinder of a party will ... implicate the court’s subject matter jurisdiction and require dismissal ... if a statute mandates the naming and serving of the party." (Internal quotation marks omitted.) Fountain Pointe, LLC v. Calpitano, 144 Conn.App. 624, 649, 76 A.3d 636, cert. denied, 310 Conn. 928, 78 A.3d 147 (2013).
General Statutes § 54-95(a) provides, in relevant part, that a criminal defendant may seek relief from a criminal conviction by filing a petition for a new trial "in the same manner and with the same effect as in civil actions ..." (Emphasis added.) A petition for a new trial is collateral to the action in which a new trial is sought. Redding v. Elfire, LLC, 98 Conn.App. 808, 818, 911 A.2d 1141 (2006). In an action on a petition for new trial, a petitioner is not a criminal defendant but rather is a civil petitioner. Seebeck v. State, 246 Conn. 514, 545, 717 A.2d 1161 (1998). A proceeding on a petition for new trial, therefore, is not a criminal action. Rather, it is a distinct proceeding that is commenced by the service of civil process and is prosecuted as a civil action. Redding v. Elfire, LLC, supra, at 818-19, 911 A.2d 1141." Id. at 217.
General Statutes § 52-64 states in pertinent part: "(b) In any civil action commenced by a person who is incarcerated against the state ... service of process ... shall be accomplished by a proper officer (1) leaving one true and attested copy of the process, including the declaration or complaint, with the Attorney General at the office of the Attorney General in Hartford, or (2) sending one true and attested copy of the process, including the summons and complaint, by certified mail, return receipt requested, to the Attorney General at the office of the Attorney General in Hartford."
DEFENDANTS’ POSITION
Pursuant to Practice Book § 10-39, the individual respondents, the State of Connecticut State’s Attorney for the Judicial District of Danbury, the Chief State’s Attorney’s Office, and the Attorney General Office State of Connecticut respectfully move to strike the complaint against them on the ground that the action lies only against the State of Connecticut, because at all times relevant to this action, the individual respondents were acting as officers of the State. In so moving, the respondents, and each of them, respectfully represent that a petition for new trial is "instituted by a writ and complaint served on the adverse party" and although it is therefore a distinct and separate proceeding, it is collateral to the original criminal prosecution in which a new trial is sought. State v. Asherman, 180 Conn. 141, 144, 429 A.2d 810 (1980). In the instant action, the petitioner seeks a new trial as his sole and exclusive relief. The relief that he seeks, therefore, does not depend upon the presence of the prosecuting attorney or any other individual State official. The action is thus one against the State only. Miller v. Egan, 265 Conn. 301, 308-17, 828 A.2d 549 (2003); see also, Walker v. State, 6 Conn.L.Rptr. 726 (1992).
PLAINTIFF’S POSITION
The plaintiff claims in his response to defendants’ motion to strike that he properly served the State of Connecticut through each agency that is authorized to accept service when a petition for a new trial based on newly discovered scientific evidence is made. Plaintiff cites Walker v. State, 6 Conn.L.Rptr. 726 as controlling, as in that matter, the State’s Attorney for the judicial district of Hartford was personally served. The plaintiff further alleges that in this petition for a new trial, the state marshal didn’t serve any of the individual defendants which the marshal alleges, but that the plaintiff served just the named agencies that are agencies that would represent the State of Connecticut in the petition for new trial. Therefore, the motion to strike should be denied.
ANALYSIS
The first inquiry of the court will be to determine who, or what entity(ies) was/were served by the state marshal. In the summons the plaintiff filed with the court, the defendants are listed as the State of Connecticut State’s Attorney for the Judicial District of Danbury, the Chief State’s Attorney’s Office, and the Attorney General Office State of Connecticut. In the return of service by the state marshal that the plaintiff filed with the court, the marshal listed the defendants served as State of Connecticut State’s Attorney Judicial District of Danbury, the Chief State’s Attorney’s Office, and the Attorney General Office State of Connecticut. Clearly based on the foregoing, the plaintiff sued either a party personally, as done with the State’s Attorney for the judicial district of Danbury, or both the Office of the Chief State’s Attorney and the Attorney General’s Office, none of which are the State of Connecticut, which is the only indispensable defendant. As correctly identified by the defendants, they are individuals or offices acting as officers of the State of Connecticut, but are not the State of Connecticut itself. As such, the plaintiff did not serve the proper party. The plaintiff cites Walker v. State as authority for his position that the State’s Attorney is a proper party, when the case actually stands for the proposition that the State’s Attorney is, in fact, not the proper party, as the court in Walker v. State granted the State’s Attorney’s motion to strike, removing him as a defendant.
If the service is not proper, and there is a misjoinder of party defendants, the case law is clear. "A party is deemed necessary if its presence is absolutely required in order to assure a fair and equitable trial." (Internal quotation marks omitted.) In re Devon B., 264 Conn. 572, 580, 825 A.2d 127 (2003). "When the complaint alleges all facts necessary to show that a party not joined is necessary to the action, [a motion to strike] is ... used to raise a defect apparent on the face of the pleadings. 1 E. Stephenson, Connecticut Civil Procedure (2d Ed. 1970) § 105, pp. 430-31." (Emphasis omitted; internal quotation marks omitted.) Pelletier Mechanical Services, LLC v. G&W Management, Inc., 162 Conn.App. 294, 302, 131 A.3d 1189, cert. denied, 320 Conn. 932, 134 A.3d 622 (2016). "[T]he exclusive remedy for misjoinder of parties ... is by motion to strike." Bender v. Bender, supra, 292 Conn. 722 n. 23; see also Practice Book § 11-3. "Naming an improper person as a party in a legal action constitutes misjoinder." (Internal quotation marks omitted.) Bloom v. Milkovich, 111 Conn.App. 323, 329, 958 A.2d 1283 (2008). "The nonjoinder of a party will ... implicate the court’s subject matter jurisdiction and require dismissal ... if a statute mandates the naming and serving of the party." (Internal quotation marks omitted.) Fountain Pointe, LLC v. Calpitano, 144 Conn.App. 624, 649, 76 A.3d 636, cert. denied, 310 Conn. 928, 78 A.3d 147 (2013).
The State of Connecticut is an indispensable party, and in fact, the only party that needs to be joined to initiate the petition for a new trial, and although the plaintiff served the Attorney General’s Office for the State of Connecticut, he served the Attorney General’s Office State of Connecticut as a defendant, not as a recipient of the service of process for the State of Connecticut. General Statutes § 52-64 states in pertinent part: "(b) In any civil action ... against the state ... service of process shall be accomplished by ... (1) leaving ... the process ... with the Attorney General ... in Hartford, or (2) sending ... the process ... by certified mail ... to the Attorney General ... in Hartford." (Emphasis added.) Section 52-64 does not require suit against the Attorney General or the Office of the Attorney General, it requires suit against the State of Connecticut as the defendant, and to accomplish service on the State of Connecticut, the plaintiff must serve or mail to the Attorney General’s Office as the agent to receive service on behalf of the State of Connecticut. To serve the Attorney General’s Office as a defendant, or to sue the State’s Attorney for the judicial district of Danbury, and Office of the Chief’s State’s Attorney as defendants, is not correct service, and as such constitutes misjoinder. As instructed by the Appellate Court, "The nonjoinder of a party will ... implicate the court’s subject matter jurisdiction and require dismissal ... if a statute mandates the naming and serving of the party." (Internal quotation marks omitted.) Fountain Pointe, LLC v. Calpitano, 144 Conn.App. 624, 649, 76 A.3d 636, cert. denied, 310 Conn. 928, 78 A.3d 147 (2013). Therefore, it is the decision of this court that the plaintiff did not serve, as required by § 52-64, the State of Connecticut. Service of process is fatally defective.
CONCLUSION
Based on the foregoing, the defendants’ motion to strike the plaintiff’s complaint is GRANTED.