Opinion
No. HDSP-152727
January 5, 2010
MEMORANDUM OF DECISION
The plaintiff, Rowe 77 Associates LLC, ("Rowe") has brought this summary process action seeking to recover possession of the premises known as 178 Hungerford Street, Apt. 3A, Hartford, Connecticut from the defendants, Helen Pickett, John Doe and Jane Doe for nonpayment of rent. The plaintiff alleges that on or about October 23, 2007, the plaintiff and Pickett entered into an agreement for the plaintiff to provide Pickett with shelter housing. The plaintiff further alleges that the Department of Social Services ("DSS") and the Department of Children and Families ("DCF") agreed to make rental payments to the plaintiff on Pickett's behalf at the rate of $42.00 per day. The plaintiff further alleges that the DSS and DCF have ceased making payments on Pickett's behalf and no payments have been made since March 2009.
John Doe and Jane Doe are listed as residing at the same address as Pickett. Neither John Doe nor Jane Doe has filed an appearance.
On July 24, 2009, Pickett moved to implead Susan I. Hamilton, Commissioner of DCF("Hamilton"), alleging that DCF ceased making the rental payments "without written notice to Pickett and without providing her with an opportunity to be heard in violation of Section 22-4-3 of the Policy Manual of the Department of Children and Constitutions." The motion to implead was granted on July 27, 2009. (Aurigemma, J.). On July 29, 2009, Pickett filed a third-party complaint against Hamilton.
On August 6, 2009, Hamilton filed a motion to dismiss Pickett's third-party complaint on the ground that the court lacks subject matter jurisdiction together with a memorandum of law in support of the motion. Pickett filed a memorandum of law in opposition to the motion to dismiss on August 24, 2009. The matter was heard by the court on September 8, 2009.
LEGAL STANDARD
"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." (Internal quotation marks omitted.) Caruso v. Bridgeport, 285 Conn. 618, 627, 941 A.2d 266 (2008). "The motion to dismiss shall be used to assert . . . lack of jurisdiction over the subject matter . . ." Practice Book § 10-31.
"Jurisdiction over the person, jurisdiction over the subject-matter, and jurisdiction to render the particular judgment are three separate elements of the jurisdiction of a court. Each element of jurisdiction is dependent upon both law and fact." Castro v. Viera, 207 Conn. 420, 433, 541 A.2d 1216 (1988). "Jurisdiction of the subject-matter is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong . . . A court has subject matter jurisdiction if it has the authority to adjudicate a particular type of legal controversy. Such jurisdiction relates to the court's competency to exercise power, and not to the regularity of the court's exercise of that power." (Citation omitted; internal quotation marks omitted.) Id., 427.
"Once the question of subject matter jurisdiction has been raised, cognizance of it must be taken and the matter passed upon before [the court] can move one further step in the cause; as any movement is necessarily the exercise of jurisdiction." (Internal quotation marks omitted.) Schaghticoke Tribal Nation v. Harrison, 264 Conn. 829, 839 n. 6, 826 A.2d 1102 (2003). "[T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n. 12, 829 A.2d 801 (2003). "The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone." (Internal quotation marks omitted.) Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007). "[I]n determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Connor v. Statewide Grievance Committee, 260 Conn. 435, 443, 797 A.2d 1081 (2002).
DISCUSSION
Hamilton argues that Pickett's third-party complaint should be dismissed for lack of subject matter jurisdiction because Hamilton, acting in her capacity as an officer of the state, is immune from the suit under the doctrine of sovereign immunity. Pickett argues in her memorandum in opposition to Hamilton's motion to dismiss that an exception to the doctrine of sovereign immunity applies because her prayer for relief asks for "an order, in the nature of an injunction, to require the resumption of the rental payments to her landlord." Therefore, the court is constrained to determine whether, as a matter of law, Pickett's third-party complaint seeks injunctive or monetary relief.
"The principle that the state cannot be sued without its consent, or sovereign immunity, is well established under our case law . . . It has deep roots in this state and our legal system in general, finding its origin in `ancient common law.' . . . Not only have we recognized the state's immunity as an entity, but [w]e have also recognized that because the state can act only through its officers and agents, a suit against a state officer concerning a matter in which the officer represents the state is, in effect, against the state." (Citations omitted; internal quotation marks omitted.) C.R. Klewin Northeast, LLC v. Fleming, 284 Conn. 250, 258, 932 A.2d 1053 (2007).
"[T]he sovereign immunity enjoyed by the state is not absolute. There are [three] exceptions: (1) when the legislature, either expressly or by force of a 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 . . . For a claim made pursuant to the first exception, this court has recognized the well established principle that statutes in derogation of sovereign immunity should be strictly construed . . . Where there is any doubt about their meaning or intent they are given the effect which makes the least rather than the most change in sovereign immunity . . . For a claim made pursuant to the second exception, complaining of unconstitutional acts, we require that [t]he allegations of such a complaint and the factual underpinnings if placed in issue, must clearly demonstrate an incursion upon constitutionally protected interests . . . For a claim under the third exception, the plaintiffs must do more than allege that the defendants' conduct was in excess of their statutory authority; they also must allege or otherwise establish facts that reasonably support those allegations . . . In the absence of a proper factual basis in the complaint to support the applicability of these exceptions, the granting of a motion to dismiss on sovereign immunity grounds is proper." (Citations omitted; internal quotation marks omitted.) Columbia Air Services, Inc. v. Dept. of Transportation, 293 Conn. 342, 349-50, 977 A.2d 636 (2009).
In the absence of a statutory waiver of sovereign immunity, our Supreme Court has held that the exceptions to sovereign immunity for violations of constitutional rights and conduct in excess of an officer's authority apply "only to actions for injunctive or declaratory relief . . . to protect the state from significant interference with its functions and to limit the rule to declaratory or injunctive suits, in which the trial court carefully can tailor the relief." (Citation omitted; internal quotation marks omitted.) Id., 351. Our Supreme Court has explicitly held that the exceptions "[do] not apply . . . to claims against the state for monetary damages." Miller v. Egan, 265 Conn. 301, 315, 828 A.2d 549 (2003). Instead, "a plaintiff who seeks to bring an action for monetary damages against the state must first obtain authorization from the claims commissioner." Id., 317. "This is the case even if the claims are brought pursuant to the United States constitution." Daimler Chrysler Corp. v. Law, 284 Conn. 701, 723-24, 937 A.2d 675 (2007).
The policies underlying the exceptions to sovereign immunity for injunctive relief and the refusal to create an exception for monetary damages have been discussed in our recent case law. "Sovereign immunity rests on the principle and on the hazard that the subjection of the state and federal governments to private litigation might constitute a serious interference with the performance of their functions and with their control over their respective instrumentalities, funds and property . . . Because a court may tailor declaratory and injunctive relief so as to minimize any such interference, and in order to afford an opportunity for voluntary compliance with the judgment, actions that seek injunctive or declaratory relief against a state officer acting in excess of statutory authority or pursuant to an unconstitutional statute do not conflict with the policies underlying the doctrine of sovereign immunity." (Citation omitted; internal quotation marks omitted.) Miller v. Egan, supra, 265 Conn. 314.
For similar policy reasons, courts have declined to permit any monetary award against the state or its officials because monetary awards are "directly enforceable, without further court intervention, against any property of the judgment debtor that is not statutorily exempt . . . Even where the monetary award is so minimal as the sum a prevailing party would be entitled to receive as taxable costs under General Statutes § 52-257, [the Supreme Court] has refused to sanction a monetary judgment against the state in the absence of explicit statutory authority." (Citation omitted.) Doe v. Heintz, 204 Conn. 17, 32, 526 A.2d 1318 (1987).
The final paragraph of Pickett's third-party complaint states in pertinent part: "Wherefore the third party plaintiff, Helen Pickett, requests an order that the third party defendant, Susan I. Hamilton, Commissioner of the Department of Children and Families, resume rental payments to Rowe 77 Associates, LLC, retroactive to the date said payments were terminated." The order requested is precisely the kind of directly enforceable monetary award that our courts have refused to award in the absence of explicit statutory authority.
In her memorandum in opposition to Hamilton's motion to dismiss, Pickett cites Kostok v. Thomas, 105 F.3d 65 (2nd Cir. 1997), in support of her argument that the relief she seeks is injunctive and not for monetary damages. The court finds Pickett's reliance on Kostok to be unavailing. In Kostok, the court found that the plaintiff's suit for injunctive relief compelling the State of Connecticut to furnish him with a new wheelchair customized to his special needs was not violative of the Eleventh Amendment. In reaching its conclusion that the plaintiff's claim was for prospective injunctive relief, the court said: "Kostok seeks relief that is truly prospective: a wheelchair from this time forward." (Emphasis added.) Id. In the present case, Pickett asks that Hamilton, in her official capacity, "resume rental payments to Rowe 77 Associates, LLC, retroactive to the date said payments were terminated." Since Pickett seeks prospective and retroactive rental payments, it cannot be said that the relief sought is truly prospective. Kostok itself notes: "Any claim for retroactive monetary relief, under any name, is barred." Id.
Furthermore, in reaching its conclusion, the Kostok court contrasted its decision from two cases: Edelman v. Jordan, 415 U.S. 651, 659, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974); and Yorktown Medical Laboratory, Inc. v. Perales, 948 F.2d 84, 87 (2nd Cir. 1991). In Edelman, while the court noted that "an ancillary effect on the state treasury is a permissible and often an inevitable consequence . . ." of ordering prospective relief, the impermissible retroactive award in that case was "in practical effect indistinguishable in many aspects from an award of damages against the [s]tate" because it would "to a virtual certainty be paid from state funds, and not from the pockets of the individual state officials who were the defendants in the action. It is measured in terms of a monetary loss resulting from a past breach of a legal duty on the part of the defendant state officials." Edelman v. Jordan, supra, 415 U.S. 668. Similarly, in Yorktown, the court held that the relief requested attempted to recast itself as "prospective injunctive relief — the return of property" which was "a specious attempt to parry the [e]leventh [a]mendment defense." (Citations omitted.) Yorktown Medical Laboratory, Inc. v. Perales, supra, 948 F.2d 87. That argument failed because it sought to "craft a distinction between monetary damages and money in which plaintiff has a property interest — a distinction irrelevant to [e]leventh [a]mendment analysis." Id., 87-88. The present case is comparable to these cases. Like Edelman, the rental payments sought here would most certainly be paid from state funds and measured in terms of a monetary loss resulting from a past breach of a legal duty on the part of the defendant state official despite Pickett's attempt to cast her claim for monetary damages as a claim for injunctive relief. For these reasons, the court finds Pickett's reliance on Kostok unpersuasive.
Having found that Pickett's complaint seeks monetary damages against the state, she is required to comply with the established procedures for bringing such a claim. "In implementing article eleventh, § 4, of our state constitution, the legislature has established a tribunal, in the person of the claims commissioner, for the adjudication of claims against the state where monetary relief is sought. General Statutes §§ 4-141, 4-142 . . . The claims commissioner is authorized to `approve immediate payment of just claims not exceeding [$7,500].' General Statutes § 4-158. For claims greater than that sum, the claims commissioner must recommend their payment or rejection to the general assembly which `may accept, alter or reject any such recommendation.' General Statutes § 4-159. The claims commissioner also, when he `deems it just and equitable,' may effectively waive the state's sovereign immunity by authorizing suit `on any claim which, in his opinion, presents an issue of law or fact under which the state, were it a private person, could be liable.' General Statutes § 4-160(a). This legislation expressly bars suits upon claims cognizable by the claims commissioner except as he may authorize, an indication of the legislative determination to preserve sovereign immunity as a defense to monetary claims against the state not sanctioned by the commissioner or other statutory provisions. General Statutes §§ 4-148(b), 4-160." (Citation omitted.) Doe v. Heintz, supra, 204 Conn. 35-36.
The jurisdiction of the claims commissioner is set forth in § 4-142, which provides: "There shall be a [c]laims [c]ommissioner who shall hear and determine all claims against the state except: (1) Claims for the periodic payment of disability, pension, retirement or other employment benefits; (2) claims upon which suit otherwise is authorized by law including suits to recover similar relief arising from the same set of facts; (3) claims for which an administrative hearing procedure otherwise is established by law; (4) requests by political subdivisions of the state for the payment of grants in lieu of taxes; and (5) claims for the refund of taxes." Pickett's claim falls within the jurisdiction of the claims commissioner as a claim against the state. See Doe v. Heintz, supra, 204 Conn. 36 ("[t]he claim of the plaintiffs for attorneys fees incurred in obtaining necessary health related benefits erroneously denied to them by state officials falls within the jurisdiction of the claims commissioner, as set forth in § 4-142, to `hear and determine all claims against the state,' with five exceptions, none of which are applicable"). Furthermore, her claim does not meet one of the five exceptions listed in § 4-142 that would remove it from the claims commissioner's jurisdiction.
Pickett's complaint, on its face, does not implicate subsections one, four or five of § 4-142. Subsection two has not been implicated by reference to any governing statute either in the complaint or in Pickett's memorandum in opposition to the motion to dismiss that would waive the state's sovereign immunity. Similarly, while Pickett has made reference to a pending hearing pursuant to DCF's internal administrative hearing procedures, she has not raised any statute which specifically authorizes her to file suit based on the allegations in her complaint which would provide an exception under subsection three. See Lyon v. Jones, 291 Conn. 384, 402, 968 A2d 416 (2009) (naming General Statutes § 46a-82(a), which specifically authorizes the filing of a complaint by "[a]ny person claiming to be aggrieved by an alleged discriminatory practice," as a statute providing an alternative administrative procedure excluded from the purview of the claims commissioner).
Pickett has made no allegation that she presented her claim to the claims commissioner prior to filing. "Since we are not aware of any legal barrier to the presentation of the plaintiff's claim to the [claims] commissioner or to his favorable action upon it, we cannot assume that recourse to that procedure would necessarily have been futile or inadequate . . . Because exhaustion of this alternative means of relief is a prerequisite to the trial court's jurisdiction to consider any of the plaintiff's claims for monetary damages, we conclude at the outset that the trial court lacked jurisdiction to consider any of those claims . . ." (Citation omitted; internal quotation marks omitted.) Columbia Air Services, Inc. v. Dept. of Transportation, supra, 293 Conn. 352.
In Cox v. Aiken, 278 Conn. 204, 206, 897 A.2d 71 (2006), a state service employee brought an action against DSS and its assistant director of human resources to challenge a layoff. Part of the plaintiff's complaint was a claim for retroactive compensation. Id., 208 n. 8. In dismissing that part of the claim, the Appellate Court stated: "The [trial] court held that the plaintiff's claim for retroactive compensation was a claim for money damages that could not be brought against the defendants without the permission of the claims commissioner . . . Because the plaintiff had not alleged that he received permission to sue from the claims commissioner, the court dismissed the plaintiff's claim for retroactive compensation." (Citation omitted; internal quotation marks omitted.) Id. See, e.g., Columbia Air Services, Inc. v. Dept. of Transportation, supra, 293 Conn. 352 (since it was undisputed that the plaintiff failed to present its claims against the state to the claims commissioner prior to filing its action, the trial court lacked jurisdiction to consider any of the plaintiff's claims for monetary damages and, therefore, properly granted the motion to dismiss as it related to those claims); Barde v. Board of Trustees, 207 Conn. 59, 60-61, 539 A.2d 1000 (1988) (as to money damages claims, the plaintiff was required to exhaust administrative remedies by proceeding through claims commissioner). Because Pickett has failed to allege that she received permission from the claims commissioner to file her claim, the court lacks subject matter jurisdiction to hear her claim.
CONCLUSION
For the foregoing reasons, the motion to dismiss the third-party complaint is granted.
SO ORDERED.