Summary
dismissing plaintiff's claims against state marshal as barred by state sovereign immunity
Summary of this case from Gyadu v. BainerOpinion
No. CV08-5011263S
April 14, 2010
MEMORANDUM OF DECISION RE MOTION TO DISMISS (#105) FACTS
The plaintiffs commenced this action by way of a four-count complaint against eight (8) duly authorized state marshals and two (2) civilian non-marshals, all of whom participated in capias arrest sweeps arising out of delinquent support enforcement orders. The plaintiffs are subjects of these arrests and claim that, for a three (3) year period prior to the bringing of this action in November of 2008, the state marshals brought along the two (2) civilian defendants to "participate and aide in the execution of capias arrest warrants" despite the civilians' lacking any special expertise or skill to necessitate their participation. Complaint, ¶ 16. It is further alleged the two (2) civilians held themselves out as state marshals in that they wore state marshal jackets and carried badges and handcuffs allegedly provided by the defendant state marshals. The claimed extent of the civilians' participation is limited to their presence in plaintiffs' homes at the time of arrest, the handcuffing of certain plaintiffs, and their taking part in the transporting of plaintiffs in law enforcement vehicles to a correctional facility. Complaint, ¶ 42.
Plaintiffs assert all defendants violated their constitutional right to be free from unauthorized arrest and unreasonable search and seizure (Count One), fraudulent misrepresentation (Count Two), and violation of Connecticut General Statute § 6-32 regarding service of process (Counts Three and Four). State Marshals Gallup, Kaz, Pesini, and Mendez have moved to dismiss on the grounds the plaintiffs lack standing because they failed to allege an injury and because the state marshals are entitled to governmental immunity. The court denied the motion based on the standing issue at oral argument on March 1, 2010, finding the plaintiffs were aggrieved — and thus "injured" — when deprived of their constitutional right to be free of unauthorized and unreasonable entry into private homes. Having reserved decision on the issue of sovereign immunity, the court addresses only that argument here.
The marshals are allegedly sued both in their official and in their individual capacities. (See Summons.) Paragraphs 9, 11, 12, and 13 assert each of these defendants was "at all relevant times . . . acting in his capacity as a State Marshal for the State of Connecticut, (sic) and under the color of state law, this is, under color of the Constitution, statutes, laws, charter, ordinances, rules, regulations, customs and usages of the United States and of the State of Connecticut." Id. No allegation is made that any conduct by any of these — or other named — state marshals was as a private citizen; it is instead plaintiffs' allegation the marshals were acting "at all relevant times" as state agents under color of both state and federal laws. The court concludes therefore that citing them in their individual capacities is without legal significance since the plaintiffs are limited by the allegations of their complaint. The court's resolution of defendants' claims of sovereign immunity therefore resolves all claims directed to the marshal defendants in the only capacity in which the plaintiffs have sued them — in their official capacity. Whether an action effectively seeks redress from an individual — as opposed to the state — "is to be found in the essential nature and effect of the proceeding." Spring v. Constantino, 168 Conn. 563, 568 (1975)." "The fact that the state is not named as a defendant does not conclusively establish that the action is not within the principle which prohibits actions against the sovereign without its consent . . ." Id.
APPLICABLE LAW
"A motion to dismiss . . . properly attacks the jurisdiction of the court, 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 . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134 (2007) (internal quotation marks omitted). It shall be used to assert lack of subject matter jurisdiction. Practice Book § 10-31. "Moreover, [t]he doctrine of sovereign immunity implicates subject matter jurisdiction . . ." Kozlowski v. Commissioner of Transportation, 274 Conn. 497, 501 (2005). "The plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." Fink v. Golenbock, 238 Conn. 183, 199, n. 13 (1996) (Citation omitted).
APPLICATION OF LAW TO FACT
At common law, the state may not be sued without its consent. This exemption from suit is based upon the legal and practical ground that there can be no legal right as against the authority that makes the law on which the right depends. Ware v. State, 118 Conn.App. 65, 69 (2009). The sovereign immunity enjoyed by the state is not, however, absolute; there are three exceptions: (1) when the legislative — either expressly or by necessary implication — statutorily waives the state's sovereign immunity; (2) when an action seeks declaratory or injunctive relief on the basis of a substantial claim that the state or one of its officers has violated the plaintiff's constitutional rights; and (3) when an action seeks declaratory or injunctive relief on the basis of a substantial allegation of wrongful conduct to promote an illegal purpose in excess of the officer's statutory authority. Columbia Air Services, Inc. v. Dept. of Transportation, 293 Conn. 342, 349 (2009).
The court rejects the plaintiffs' argument that the allegations of constitutional violations necessarily precludes defendants from claiming sovereign immunity since the constitutional rights exception to the doctrine applies only when declaratory or injunctive relief is sought and the plaintiffs here seek compensatory and punitive damages.
Our Supreme Court has laid down the following criteria for determining whether the suit is in effect one against the state and can be maintained without consent: (1) a state official has been sued; (2) the suit concerns some matter in which that official represents the state; (3) the state is the real party against whom relief is sought; and (4) the judgment, though nominally against the official, will operate to control the activities of the state or subject it to liability. Somers v. Hill, 143 Conn. 476, 479 (1956).
Though first enunciated in Somers, supra, this four-pronged test is often referred to by defendants — as well as many courts — as the " Spring" test — apparently because cited at length in Spring v. Constantino, 168 Conn. 563, 568 (1975).
State marshals may be considered "state officials" in that they are, pursuant to §§ 6-38b and 6-38f, hired and regulated by the State Marshal Commission (a state agency established by the General Assembly) to provide legal execution and service of process within the state (thus an "authority conferred by law"), have tenure either fixed by law or enduring at the pleasure of the creating power (See e.g., Silverberg v. Great Southwest Fire Ins. Co., 214 Conn. 632, 638 n. 5 [1990]; Connecticut General Statute § 6-38b[j]), and perform a sovereign function of government in exercising statutory authority to take physical custody of another by execution of a warrant they are authorized to serve. Plaintiffs, however, dispute the claim of entitlement to sovereign immunity in pointing out that state marshals are, under Connecticut General Statute § 6-38, independent contractors who are under Connecticut General Statute § 6-30a, required to carry personal liability insurance.
Connecticut General Statute § 6-38b(I) also provides that, with a limited exception not applicable here, "no person may be a state marshal and a state employee at the same time."
Under Spring, supra, the test for determining whether a public official has been sued is whether that person occupies a position "in a governmental system created, or at least recognized by, applicable law to which position certain permanent duties are assigned either by the law itself or by regulations adopted under the law by an agency created by it and acting in pursuance of it . . . We have said that a public office is a trust conferred by public authority for a public purpose, and involving the exercise of the powers and duties of some portion of the sovereign power." March v. Planning Zoning Commission, 196 Conn. 192, 196 (1985) (citations and internal quotation marks omitted). Because state marshals are hired and regulated by the state marshal commission, they have the statutory authority to provide legal execution and service of process in this state's counties (Connecticut General Statute § 6-38a), and may not be removed except by order of the commission for cause after due notice and hearing, they thus serve under statutory authority (an authority "conferred by law") and for a fixed tenure or enduring at the pleasure of the creating power." Silverberg, supra, 214 Conn., at 683 n. 5 (1990) (internal quotation marks omitted). It cannot be disputed that marshals' authority to take physical custody of a person by execution of a warrant is a sovereign function of government. Under the Spring test, all of the requirements to determine a state marshal is a public official are met. Additionally, it is undisputed that this suit concerns a matter in which the defendant marshals represent the state in the exercise of its fundamental ("sovereign") power to detain an individual pursuant to a duly executed warrant, remove him from his home, and require he be subjected to a judicial determination. The state is the real party in interest because the defendants are sued for conduct in their official capacity as marshals and nowhere in this twenty-five-page complaint is there a single factual (as opposed to "legal") assertion to support a conclusion these four marshals were at any relevant time acting in their individual capacities. The remaining issue is whether a judgment, though nominally against the four officials, will operate to control the activities of the state or subject it to liability. The underlying expectation of this lawsuit is to change the marshals' claimed habit of effectuating capias arrests by soliciting civilian involvement; thus, a judgment against the marshals will have the effect of controlling how raids are conducted in the future and may — or may not — subject the state to liability. Contrarily, it is at least to be considered that a dismissal of this suit on the ground of sovereign immunity could, in the absence of legislative action, potentially encourage the continued questionable practice as is here described.
The civilians have already rendered their statements for services — and been paid; clearly, the state has already been subjected to liability.
As the plaintiffs point out, state marshals are by statute independent contractors — not state employees. Connecticut General Statute § 6-38a(a). They are required to carry personal liability insurance. Connecticut General Statute § 6-30a(a). Our Supreme Court has, however, pointedly left open "the possibility . . . that a individual who was not employed by the state, but who carried out a governmental function, could be a `state official' for purposes of meeting the first of the four criteria for determining whether sovereign immunity may be claimed." Gordon v. H.N.S. Management Co., 272 Conn. 81, 94 (2004). The plaintiffs cite to Attorney General Formal Opinion 2007-002, Feb. 2, 2007, as authority for the dual proposition state marshals cannot claim sovereign immunity because not state officers "within the meaning of Connecticut General Statute § 4-165 and § 5-141d." Counsel, however, provides no further explication of his claim — that is to say, he offers no reconciliation of the conclusions reached in that legal opinion and the Supreme Court's proviso in Gordon. Further, § 4-165, by its explicit terms, applies only to state officers and employees sued in their personal capacities and is therefore inapplicable to whether state officers or employees sued in their official capacities are immune from suit. See Mercer v. Strange, 96 Conn.App. 123, 129 (2006). As earlier stated, despite naming these defendant marshals in the summons in both their official and individual capacities, no allegations in the complaint address their conduct in other than their official capacity. "Because suing these state employees in their official capacities is tantamount to bringing the action against the state, the only immunity defense available to these defendants is sovereign immunity." Id. The same rationale would therefore bar the statutory immunity claimed under Connecticut General Statute § 5-141d.
The Mercer defendants were correction employees. The Court of Appeals thus found the trial court had improperly granted the motion to dismiss on the ground of statutory (as opposed to sovereign) immunity.
This court finds instructive Martin v. Brady, 261 Conn. 372 (2002), which had as its centerpiece the conduct of four state police officers who, pursuant to an extradition arrest warrant from Florida, attempted to locate and arrest the plaintiff in Connecticut where he owned a home. The plaintiff claimed his home was searched by defendants twice — once without a warrant and, again, pursuant to a fraudulent warrant. In the course of these searches, it is alleged the police officers struck and pushed the plaintiff to the floor after he had submitted to the arrest, smashed windows, and broke down doors. The complaint specifically alleged that at all times each of the defendants acted under color of law (as is asserted in the instant case) and also that each defendant was being sued in his individual capacity (as in the instant case). The plaintiff in Martin claimed the officers' actions constituted a deprivation of his constitutional right to be free from unreasonable searches and seizures of his person and property and a denial of procedural and substantive due process. The defendants moved to dismiss on the ground the court was without subject matter jurisdiction because the plaintiff's claims were barred by both sovereign immunity and by the plaintiff's failure to exhaust administrative remedies. The trial court, Rogers, J., granted the motion and rendered judgment accordingly. The plaintiff appealed on two grounds: 1) that defendants were not entitled to invoke the doctrine of sovereign immunity because they had been sued in their individual capacities for egregious misconduct; and 2) that the complaint did not fall within the purview of the claims commissioner because, under prior decisional law, the plaintiff was pursuing an independent constitutional claim which purportedly was not embraced by Connecticut General Statute § 4-142 (claims excepted from the claims commissioner's consideration). CT Page 8720 64 Conn.App. 433, 436 (2001). The Appellate Court affirmed in concluding the plaintiff had not demonstrated "the defendants' behavior . . . was sufficiently outside the normal scope of their statutory authority as police officers so as to avoid the doctrine of sovereign immunity." 64 Conn.App., at 442. Our Supreme Court affirmed, finding the complaint was barred by § 4-165 ("No state officer or employee shall be personally liable for damage or injury, not wanton, reckless or malicious, caused in the discharge of his duties or within the scope of his employment"). The Court specifically found the defendants' conduct was within the scope of their employment and that the allegations were insufficient to allege wantonness, recklessness or malice. 261 Conn. 372, 377 (2002). It noted the plaintiff's arrest was "sought for legitimate government interests . . . pursuant to a warrant issued by the State of Florida." Id., at 379. It asserted the Court did not need to address the claim of sovereign immunity because the "complaint" was brought against the defendants only in their individual capacities (unlike the instant case). Id. at 381.
This court cannot find the conduct of the defendant marshals rose to the level of the police officers' conduct in Martin, supra, and, since this court has noted the marshals were, as per the complaint's allegations, sued in their official capacity, sovereign immunity is in play.
The plaintiff has also provided the court a copy of the Attorney General's opinion of March 7, 2000, which the court does not find helpful. The opinion addresses the authority of "Sheriffs, Deputy Sheriffs and Special Deputy Sheriffs." It cites statutes which have been repealed (i.e., § 6-31) or which related to the number of State Marshals to be appointed in each county (Plaintiffs do not allege the number of state marshals "appointed" for New Haven County exceeded sixty-two on the dates of the offending conduct). That opinion also cites, on p. 6, to Connecticut General Statute § 52-53 which provides for state marshals' deputing — "on any special occasion" — any proper person to serve process. There is not here any claim this was formally done and, if it were, there appears no reason for the plaintiffs' claimed application of § 52-53. That legal opinion notes, in fn.1 at p. 8, that a "Special Deputy Sheriff would continue to be able to assist a regular Deputy Sheriff, provided that the regular Deputy Sheriff actually makes the arrest on the capias" and, further, that the purpose of utilizing a Special Deputy Sheriff "would be to help in preserving the peace while the regular Deputy Sheriff executed the process." Again, counsel provides no analysis of the issues raised therein and makes no effort to relate the legal conclusions there expressed to the issue before this court; more is required than to merely proffer a legal opinion as an attachment to a brief than to do so without any explanation of the opinion's usefulness. See e.g., Madsen v. Gates, 85 Conn.App. 383, 400 (2004) and Connecticut Light Power Co. v. Dept. of Public Utility Control, 266 Conn. 108, 120 (2003).
Finally the court notes that our jurisprudence distinguishes between a request for money damages and declaratory and/or injunctive relief vis-a-vis whether a waiver of immunity from the claims commissioner is required before bringing action in court. These plaintiffs seek compensatory and punitive damages (Prayer for Relief, at p. 25, #1, #3 [Note: There is no #2]) and, in such cases, a waiver is required prior to instituting suit. See e.g., Miller v. Egan, 265 Conn. 301, 325 (2003); Barde v. Board of Trustees, 207 Conn. 59, 60-61 (1988). No such assertion of waiver is here made and the plaintiffs have therefore not established their entitlement to bring suit.
The requirements of Spring, supra, having been satisfied, the court finds the defendant marshals were at all relevant times state officials entitled to sovereign immunity.
The motion to dismiss is granted.