Opinion
No. CV 02-0819172 S
April 7, 2003
MEMORANDUM OF DECISION ON STATE'S MOTION TO DISMISS
In this case, plaintiff Andrew J. Simso, III ("plaintiff") has sued the State of Connecticut ("State") to recover money damages and obtain declaratory relief in connection with the State's decade-long handling of certain administrative and judicial proceedings arising from his January 1988 purchase of a defective 1981 Ford pickup truck from a licensed used car dealer in Danbury, Connecticut. In his 52-page complaint dated August 14, 2002 ("Complaint"), which was served on August 29, 2002, the plaintiff claims that agents and representatives of the State Department of Motor Vehicles ("DMV") and attorneys from the State Office of the Attorney General violated his state and federal constitutional rights to "equal protection of the law through due process" in the following ways:
1) Conducting themselves during their handling of the plaintiff's complaint, against a [sic] auto dealer/repairer licensed by the state and under the jurisdiction of the Connecticut Department of Motor Vehicles (hereinafter "DMV"), with misfeasance and nonfeasance acts of ultra vires through acts of intentional tort, to criminally defraud the plaintiff out of the purchase of a vehicle of fair market value in compliance with state and federal laws; 2) Issuing and wrongfully upholding unauthorized, fraudulent and/or frivolous orders and/or documents without any reasonable basis in law or fact; 3) Showing reckless indifference to the rights of the plaintiff through acts of perjury and deceit; 4) Having had continuous and timely complaints filed with them and using their authority beyond the scope of their employment to refuse or correct or even acknowledge the wrongful actions of its employees; 5) Failing to protect evidence in their possession from unlawful removal; 6) Refusing to ensure that state government, acted within the letter and spirit of the law thereby protecting the rights of the plaintiff, as a person of the state, to the fullest extent allowed by law thereby protecting the public interest from corruption from within the government; 7) Using unethical and unprofessional conduct against the plaintiff during court procedures to defend and protect the unlawful actions of state employees; 8) Failing to comply with the Rules of Professional Conduct in accordance with the Connecticut Practice Book; 9) Failing to comply with the procedures in civil matters in accordance with the Connecticut Practice Book including refusing to accept the service of subpoenas by the Sheriff's Department as prescribed by law, ordering their clients to appear in court and; 10) Failing to present one of their clients before the court.
Complaint at 2-3.
As relief for these alleged constitutional violations, the plaintiff seeks $4 million in compensatory damages, an additional award of punitive damages, and an official declaration by this Court regarding the legality of the actions taken by the State, as to whether it has the discretion through statutory authority to use their offices and scope of employment for the following actions against a citizen of the public in an attempt to deny them equal protection of the law through due process:
(1) To deny a citizen due process, to protect and defend acts of intentional tort to criminally defraud a member of the public out of a vehicle of fair market value in compliance with the state's own mandated laws, by state employees and officials, over its duty to act in the public interest to protect its citizens from governmental corruption. (2) To deny a state citizen, who files a formal complaint in which any decision made would greatly and specifically affect the citizen, party status? (3) To refuse to investigate, address or even acknowledge evidence supported genuine issues of material fact, in conflict with their decisions? (4) To use their refusal to address or acknowledge evidence, against the public? (5) To refuse to address and/or hide the fact that DMV Officials unlawfully removed documents substantially supporting the plaintiff's complaints from DMV files? (6) To violate a person's right to due process by issuing and deceitfully upholding an order that could not be complied with as written? (7) To exempt from falling under the guidelines set forth in the Connecticut Practice Book when taking action against the member of the public? (8) To refuse to accept duly authorized subpoenas delivered in accordance with the law, directing them to present their defendant clients? (9) To refuse to present their client before the court knowing a subpoena had been issued for his appearance? (10) To refuse to take action to assure their client adhered to a court ordered subpoena? (11) To use unprofessional conduct against a member of the public as a pro se, by refusing to respond to their letters in reference to court issues? (12) To use unethical practices in violation of the public's right to equal protection of the law through due process? (13) To force a consumer to take court action against a dealer/repairer licensed by and under the jurisdiction of the DMV, to have a vehicle brought into compliance the state mandates. (14) Does the Connecticut Constitution or common law which authorizes the Attorney General's Office to represent the state in litigation, serving as legal counsel to all state agencies, give it the discretion through statutory authority to use their office to protect acts of corruption by state officials thereby willfully superseding their obligation to represent the people of the state to protect the public interest and the rights of the people to the fullest extent allowed by law against governmental corruption by ensuring government acts within the letter and spirit of the law? (15) Is the client of an attorney who does not cash, and therefore does not consummate his unauthorized acceptance of a decision his client ordered appealed, still bound by his attorney's unauthorized acceptance in violation of Rule 1.2(a) Scope of Representation of the Connecticut Practice Book?
Complaint, pp. 49-51.
The State has now moved this Court to dismiss this case for lack of subject matter jurisdiction on two grounds: first, that the prosecution of the plaintiff's claims violates the doctrine of sovereign immunity; and second, that the plaintiff's prosecution of such claims in this forum is an improper attempt to appeal from or collaterally attack prior decisions of judicial or administrative tribunals which the plaintiff failed to challenge in the manner prescribed by law. For the following reasons, the Court agrees with the State that this case must be dismissed.
I. FACTUAL AND PROCEDURAL BACKGROUND
The plaintiff purchased his pickup truck from Ralph's Auto Sales ("Ralph's"), a licensed used car dealer in Danbury, on January 6, 1988. The total purchase price for the truck, which already had 44,000 miles on it, was $4,837.50, including taxes. When the truck developed problems which Ralph's failed or refused to address, the plaintiff took two courses of action. First, on February 9, 1988, he filed a consumer complaint against Ralph's with the DMV. Second, on September 13, 1989, he filed a civil lawsuit against Ralph's, entitled Andrew Simso, III v. Ralph LoStocco d/b/a Ralph's Auto Sales, Docket No. CV 89-00299603S ("the LoStocco Action"), in the Danbury Superior Court. In response to the plaintiff's consumer complaint, the DMV conducted an investigation which led it to conclude that there were reasonable grounds to believe that Ralph's had violated State law in connection with the sale of the truck. Accordingly, the DMV initiated an administrative enforcement proceeding against Ralph's, ultimately docketed as DMV Case No. 91/2503, to General Statutes § 14-64. On August 15, 1991, the DMV sent Ralph's a notice to inform it that an administrative hearing would be held on September 5, 1991, in accordance with the contested case provisions of the Uniform Administrative Procedures Act ("UAPA"), General Statutes §§ 4-177 4-182, to determine if Ralph's had violated State law by allowing the plaintiff to operate a vehicle which it knew or should have known not to be in compliance with State emission control standards. The notice advised Ralph's that the hearing could result in the suspension or revocation of its dealer's license or such other administrative action as might be appropriate. The plaintiff was also sent a copy of the notice of hearing.
The DMV lost its records of the plaintiff's first administrative complaint for some time.
At all times relevant to this case, General Statutes § CT Page 4673 14-64 provided as follows:
The commissioner may suspend or revoke the license or licenses of any licensee or impose a civil penalty of not more than one thousand dollars for each violation on any licensee or both, when, after notice and hearing, the commissioner finds that the licensee (1) has violated any provision of any statute or regulation of any state or any federal statute or regulation pertaining to its business as a licensee or has failed to comply with the terms of a final decision and order of any state department or federal agency concerning any such provision; or (2) has failed to maintain such records of transactions concerning the purchase, sale or repair of motor vehicles or major component parts, as required by such regulations as shall be adopted by the commissioner, for a period of two years after such purchase, sale or repairs, provided the records shall include the vehicle identification number and the name and address of the person from whom each vehicle or part was purchased and to whom each vehicle or part was sold, if a sale occurred; or (3) has failed to allow inspection of such records by the commissioner or the commissioner's representative during normal business hours, provided written notice stating the purpose of the inspection is furnished to the licensee, or has failed to allow inspection of such records by any representative of the Division of State Police within the Department of Public Safety or any organized local police department, which inspection may include examination of the premises to determine the accuracy of such records; or (4) has made a false statement as to the condition, prior ownership or prior use of any motor vehicle sold, exchanged, transferred, offered for sale or repaired if the licensee knew or should have known that such statement was false; or (5) is not qualified to conduct the licensed business, applying the standards of section 14-51 and the applicable regulations; or (6) has violated any provision of sections 42-221 to 42-226, inclusive; or (7) has failed to fully execute or provide the buyer with (A) an order as described in section 14-62, (B) the properly assigned certificate of title, or (C) a temporary transfer or new issue of registration; or (8) has failed to deliver a motor vehicle free and clear of all liens, unless written notification is given to the buyer stating such motor vehicle shall be purchased subject to a lien; or (9) has violated any provision of sections 14-65f to 14-65j, inclusive; or (10) has used registration number plates issued by the commissioner, in violation of the provisions and standards set forth in sections 14-59 and 14-60 and the applicable regulations. In addition to, or in lieu of the imposition of any other penalties authorized by this section, the commissioner may order any such licensee to make restitution to any aggrieved customer.
On November 6, 1991, the date to which the original hearing was rescheduled with notice to the plaintiff the State and Ralph's entered into settlement negotiations which resulted in a Consent Agreement, signed by Ralph's and the DMV, under which Ralph's was required to take certain remedial actions with respect to the plaintiff's truck. The plaintiff neither participated in these settlement negotiations nor signed the Consent Agreement to which they led. In fact, he later contacted the DMV to express his strong disagreement with the Consent Agreement and to request that the DMV rescind it, which the DMV refused to do. The plaintiff did not seek judicial review of the Consent Agreement under the administrative appeal provisions of the UAPA. See General Statutes § 4-183.
While the administrative enforcement proceeding was pending before the DMV, the plaintiff separately prosecuted the LoStocco action against Ralph's in an effort to rescind the sale of the pickup truck and to recover money damages for his resulting financial losses. The case was tried before an attorney trial referee, who found for the plaintiff awarding him $1,684.75 in money damages, but declined to order rescission of the sale. The referee's decision was approved by the Honorable Howard J. Moraghan, who rendered judgment thereon on August 17, 1993. Thereafter, Ralph's paid the plaintiff the damages awarded by the Court and received a satisfaction of judgment from the plaintiff's attorney which expressly "releas[ed it] from any further liability on the claim."
Notwithstanding Ralph's payment of the judgment against it in the LoStocco action and the plaintiff's own failure to appeal from the final decision of the DMV in its administrative enforcement proceeding against Ralph's, the plaintiff remained dissatisfied with the way in which the latter proceeding had been handled by the DMV and its attorneys. Accordingly, he filed two lawsuits. The first, entitled Andrew J. Simso, III v. Jose O. Salinas, Docket No. CV 97-0573175S ("the Salinas Action"), was a mandamus action, filed in the Hartford Superior Court, in which the plaintiff sought to vacate the Consent Agreement and Order which ended the administrative enforcement proceeding and to compel the DMV to hold a hearing in that proceeding. The second, entitled Andrew J. Simso, III v. Simon Hobbs, et al., Docket No. CV 98-0579788S ("the Hobbs Action"), was an ordinary civil action for money damages, also filed in the Hartford Superior Court, in which the plaintiff sought to recover from several individual DMV employees for alleged misconduct in handling his consumer complaint and resolving the administrative enforcement proceeding by the Consent Agreement.
The Hobbs action was resolved in favor of the defendant DMV employees on September 27, 1999 by the granting of their motion for summary judgment based on the applicable statute of limitations and the defense of sovereign immunity. The Salinas action, by contrast, was resolved in favor of the plaintiff after a trial on the merits before the Honorable Mary R. Hennessey.
The case was originally tried before the Honorable Frances Allen, J.T.R, but did not go to judgment because Judge Allen died before she could render her decision.
In her Memorandum of Decision dated January 30, 2001, Judge Hennessey ordered that the Consent Agreement and Order in the administrative enforcement proceeding be vacated, and that the DMV was "to pick up where it left off [in that proceeding] before undertaking the settlement discussion of November 16 [sic], 1991, which culminated in the consent decree, that is to hold a contested hearing and to proceed according to the rules and regulations promulgated by DMV for such contested hearings." Memorandum of Decision (1/30/01), p. 14. Later, however, in response to the DMV's request for clarification of this ruling, Judge Hennessey wrote that she was "not ordering the Department of Motor Vehicles to hold a contested hearing." Clarification. The DMV did not appeal from Judge Hennessey's decision, so clarified. The plaintiff, however, did appeal from that decision, but the Appellate Court dismissed his appeal as untimely on July 11, 2001.
On February 10, 2001, shortly before Judge Hennessey clarified her decision in the Salinas action, the plaintiff requested intervenor status in the reopened administrative enforcement proceeding and requested that the DMV conduct a hearing in that case. The Commissioner responded by granting the plaintiff's request for intervenor status but denying his request for a hearing. Shortly thereafter, upon reviewing the existing administrative record, the Commissioner issued a written decision dismissing that proceeding for the following reasons:
First, the licensee who is the respondent in Case No. 91/2503 and whose dealership sold you the pickup truck, Ralph LoStocco, is dead and his license has terminated. Obviously, DMV cannot suspend or revoke a license that no longer exists. Mantels v. Commissioner of Motor Vehicles, 40 Conn. Sup. 226, 229, 489 A.2d 1121 (1984) ("a licensee holds a license"). Second, you have already litigated to judgment the issue of the monetary injury that you suffered as a result of the sale of the truck and you were awarded damages. Andrew Simso, III v. Ralph LoStocco d/b/a Ralph's Auto Sales. In other words, you have been compensated for the loss sustained by reason of the acts of the licensee which constitute the grounds for the contested case proceeding in Case No. 91/2503.
Though the Commissioner's final decision was mailed to the plaintiff on March 20, 2001, the plaintiff never appealed from that decision, as permitted by the UAPA. See General Statutes § 4-183. Instead, he wrote a letter to the Commissioner in which he repeated his complaints about the DMV's handling of his consumer complaint and objected to the Commissioner's dismissal of the reopened administrative enforcement proceeding without a hearing. Treating the plaintiff's letter as a request for reconsideration under General Statutes § 4-181a, the Commissioner responded to it in writing, restating the basis for his March 20, 2001 order of dismissal.
Notwithstanding the rejection of his request for reconsideration, the plaintiff still did not appeal from the Commissioner's final decision under General Statutes § 4-183. Instead, he wrote further letters to the Commissioner restating his earlier arguments. Ultimately, on May 11, 2001, the Commissioner put an end to his post-decision correspondence with the plaintiff by writing him a letter explaining as follows that the matter was closed and that no further action would be taken:
With all due respect, I believe that we have reached the point where you are simply beating the proverbial dead horse in this matter. Your latest correspondence essentially rehashes the arguments presented in your letters of February 10th and March 28th, 2001. These arguments were carefully considered as part of my decision to dismiss the contested case and to deny your petition for reconsideration. At this point, I see no useful purpose to be served in continuing to debate the matter, and I do not intend to do so.
On March 20, 2001, the DMV mailed to you the final decision in Ralph's Auto Sales, DMV Case No. 91/2503. You of course were not obligated to agree with the decision. On the contrary, if you believed that you were aggrieved by the final decision and that the decision was contrary to law, you had the opportunity to seek judicial review through an appeal pursuant to Section 4-183 of the Connecticut General Statutes. However, you chose not to file an appeal. Again, that is your prerogative — as it was your prerogative not to file a complaint against LoStocco Motors with the DMV in 1988, or not to bring a lawsuit against LoStocco Motors in the Superior Court at the time you were suing Ralph's Auto Sales.
I regret that you had an unpleasant experience with DMV in connection with the investigation and prosecution of your consumer complaint against Ralph's Auto Sales. Nevertheless, there comes a point when one must move on and stop dwelling on past events, especially when no practical relief can be provided by DMV under the changed circumstances since you purchased the used truck some 13 years ago. Again, I consider this matter closed.
Exhibit 28 to Affidavit of John Yacavone (10/10/02) (submitted in support of State's Motion to Dismiss).
Shortly before Judge Hennessey rendered her decision in the Salinas action, the plaintiff sought to cure one of the defects which had led to the granting of summary judgment in the Hobbs action by seeking permission from the Claims Commissioner to sue the State for alleged improper handling of the complaint about his truck. The Claims Commissioner dismissed the plaintiff's claim "for lack of jurisdiction" in a short-form order dated November 9, 2000. Simso v. State of Connecticut, File No. 18078.
Two years later — and over one year after the Commissioner of Motor Vehicles issued his final decision dismissing the DMV's administrative enforcement proceeding against Ralph's and almost one month after the instant case was commenced — the Claims Commissioner denied a second request by the plaintiff for permission to sue the State on the claims here at issue. In his two-page memorandum of decision dated September 27, 2002, the Claims Commissioner explained that permission to sue could not be granted because the plaintiff had failed to file his claim within the one-year time limit established by General Statutes § 4-148 (a). The plaintiff has never obtained permission from the General Assembly to extend the one-year deadline for requesting permission from the Claims Commissioner to sue the State, as permitted by General Statutes § 4-148 (b).
At all times relevant to this case, General Statutes § 4-148 has provided as follows:
(a) Except as provided in subsection (b) of this section, no claim shall be presented under this chapter but within one year after it accrues. Claims for injury to person or damage to property shall be deemed to accrue on the date when the damage or injury is sustained or discovered or in the exercise of reasonable care should have been discovered, provided no claim shall be presented more than three years from the date of the act or event complained of.
(b) The General Assembly may, by special act, authorize a person to present a claim to the Claims Commissioner after the time limitations set forth in subsection (a) of this section have expired if it deems such authorization to be just and equitable and makes an express finding that such authorization is supported by compelling equitable circumstances and would serve a public purpose. Such finding shall not be subject to review by the Superior Court.
(c) No claim cognizable by the Claims Commissioner shall be presented against the state except under the provisions of this chapter. Except as provided in section 4-156, no claim once considered by the Claims Commissioner, by the General Assembly or in a judicial proceeding shall again be presented against the state in any manner.
II. SOVEREIGN IMMUNITY
"It is well established law that the State is immune from suit unless it consents to be sued by appropriate legislation waiving sovereign immunity in certain prescribed cases." Martinez v. Department of Public Safety, 258 Conn., 680, 683, 784 A.2d 347 (2001); see Conn. Constitution, Art. XI § 4. There are two ways in which a plaintiff who sues the State can avoid the bar of sovereign immunity: (1) if the State has consented to the suit; or (2) if the allegations of the Complaint and the relief requested fall within a common-law exception to the doctrine of sovereign immunity.
A. Consent to Suit
The State may waive its right to sovereign immunity by consenting to suit. Since the giving or withholding of consent to suit is the prerogative of the General Assembly, id., the General Statutes control this inquiry.
In most cases, the General Assembly has delegated the task of waiving sovereign immunity to the State Claims Commissioner under General Statutes § 4-142. Section 4-142 requires the Claims Commissioner to hear all "claims" against the State except those covered by any of the five narrow exceptions listed in the statute, then to decide, in his sole discretion, whether or not to authorize suit. Capers v. Lee, 239 Conn. 265, 268 n. 3, 684 A.2d 696 (1996).
At all times relevant to this case, Section 4-142 has provided as follows:
There shall be a Claims Commissioner 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.
"Claim means a petition for the payment or refund of money by the state or for permission to sue the state." General Statutes § 4-141. The allegations made in plaintiff's Complaint, and the money damages he seeks, clearly bring most of the counts, accusations, and charges presented in his Complaint within this definition.
Against this background, this Court's inquiry as to whether or not the State has consented to this suit must proceed as follows. The Court must first determine if the suit is covered by one of the five exceptions listed in Section 4-142. If it is, then the State must be found to have consented to the suit as a matter of law. If, however, the suit is not covered by one of the listed statutory exceptions, the Court must go on to determine if the Claims Commissioner has consented to the suit in the manner prescribed by law. If he has not, then the suit must be dismissed unless it falls within a common-law exception to the sovereign immunity doctrine.
The first exception listed in Section 4-142 authorizes suits against the State for "[c]laims for the periodic payment of disability, pension, retirement or other employment benefits." This case is plainly not covered by the first exception because it does not involve claims for the periodic payment of employment benefits.
The second exception listed in the statute is for "claims upon which suit otherwise is authorized by law including suits to recover similar relief arising from the same set of facts[.]" The State is deemed to have consented to suit under this exception if the General Assembly has passed another statute granting the right to bring a civil action directly against the State in particular circumstances. E.g., General Statutes § 13a-144 (the defective highway statute). "Such a statute must clearly indicate an intent to allow a suit against the state by the use of express terms or by force of a necessary implication." Conn. Employees Ass'n v. Dep't of Administrative Services, 20 Conn. App. 676, 678, 569 A.2d 1152 (1990), quoting Baker v. Ives, 162 Conn. 295, 298, 294 A.2d 290 (1972)). No such statute has been invoked by the plaintiff in this case, and none is fairly implicated by the allegations of his Complaint.
Claims for money damages alleging constitutional violations on the part of State employees are not claims upon which suit is otherwise authorized by law within the meaning of Section 4-142 (2). Martin v. Brady, 64 Conn. App. 433, 780 A.2d 961 (2001), aff'd on other grounds, 261 Conn. 372, 802 A.2d 814 (2002). The plaintiff in Brady argued that the Supreme Court had authorized direct constitutional claims against state employees for money damages in Binette v. Sabo, 244 Conn. 23, 710 A.2d 688 (1998). The Appellate Court flatly rejected that proposition, as the claims in Binette had been brought against municipal employees, not State employees. Brady supra, 64 Conn. App. at 439. In light of the Appellate Court's holding in Brady, the State has not consented to suit under Section 4-142 (2) as to the plaintiff's money damages claims, notwithstanding the constitutional labels the plaintiff has affixed to many of his claims.
The third exception listed in Section 4-142 grants consent to suit on "claims for which an administrative hearing procedure otherwise is established by law." That exception is patently irrelevant to this case because this is a civil action rather than a proceeding before an administrative tribunal.
On the other hand, the limited waiver of sovereign immunity for administrative hearings and their appeals is implicated in this case to the extent that some claims here presented by the plaintiff could and should have been pursued by him in the DMV administrative enforcement proceeding against Ralph's, the licensed used car dealer who sold him his defective truck. When a statute waives sovereign immunity in particular circumstances, the waiver of immunity thereby authorized is strictly construed against a party asserting a claim within the scope of that waiver. Duguay v. Hopkins, 191 Conn. 222, 232, 464 A.2d 45 (1983). Consistent with this rule, statutory procedures for the assertion of waived claims are enforced no less strictly against parties asserting such claims than substantive statutory provisions establishing the proper scope of the claims themselves. Here, then, the plaintiff cannot argue that sovereign immunity has been waived for the purposes of this action as to any claims he could have presented, but failed to present, in the DMV's administrative enforcement proceeding.
The fourth and fifth exceptions set forth in the statute are for "requests by political subdivisions of the state for the payment of grants in lieu of taxes" and "claims for the refund of taxes." This suit is plainly not authorized under either such exception because it is brought by an individual rather than a political subdivision and it does not involve any listed request or claim.
Since this case does not fit within any of the five exceptions spelled out in § 4-142, the only way the State could have consented to this suit would have been if the Claims Commissioner had authorized it. The Claims Commissioner, however, has twice rejected petitions by the plaintiff for permission to sue the State on this matter. Most recently, the Claims Commissioner denied the plaintiff's request for permission to sue because he filed his request more than one year after the claim accrued, in violation of General Statutes § 4-148 (a). Without permission from the General Assembly, in the form of a Special Act authorizing the late presentation of a claim beyond the one-year time limit established by § 4-148 (a), the Claims Commissioner had no power to grant the plaintiff's petition to file this lawsuit, or thus to waive sovereign immunity with respect to his present claim.
Because the claims presented in this lawsuit do not fall within any of the five exceptions listed in Section 4-142 and the Claims Commissioner did not authorize the plaintiff to sue the State based upon them, the State has not consented to this suit, and thus has not waived its sovereign immunity. Therefore, this case can continue only if the doctrine of sovereign immunity does not apply. The Court now turns to the common-law exceptions to the doctrine of sovereign immunity.
B. Common-Law Exceptions to the Doctrine of Sovereign Immunity
Our courts have come to recognize two important exceptions to the doctrine of sovereign immunity. Those exceptions, which arise in situations where the interests of individuals to sue State are deemed to outweigh the State's sovereign right to be free from suit, are for: (1) actions for declaratory and/or injunctive relief agents based upon clear violations of fundamental constitutional rights; see, e.g., Horton v. Meskill, 172 Conn. 615, 624, 376 A.2d 359 (1977); and (2) actions based upon allegations of egregious misconduct by State agents "in excess of [their] statutory authority." See, e.g, Shay v. Rossi, 253 Conn. 134, 169, 749 A.2d 1147 (2000); Antinerella v. Rioux, 229 Conn. 479, 642 A.2d 699 (1994).
1. The "In Excess of Statutory Authority" Doctrine
In this case, the plaintiff argues that his claims are not barred by the doctrine of sovereign immunity because the misconduct he complains of was so egregious as to fall outside the statutory authority of the State agents and officials identified in his Complaint. This argument is supported by our Supreme Court's decisions in Shay and Antinerella, where the plaintiffs' respective interests in the right to be free from the consequences of unlawful, ultra vires actions were deemed to outweigh the interest served by the sovereign immunity doctrine. Shay, supra, 253 Conn. at 169; Antinerella, supra, 229 Conn. at 497 ("[Sovereign immunity] doctrine does not apply when there is a substantial allegation of wrongful conduct to promote an illegal purpose in excess of the officer's statutory authority."). Although the Supreme Court has not yet defined the precise contours of the "in excess of statutory authority" doctrine, its decisions in Shay and Antinerella, as well as the Appellate Court's decision in Martin v. Brady, supra, note 6, provide useful guidance for this Court's inquiry.
In Shay, the plaintiffs alleged that the defendants, all agents of the State Department of Children and Families ("DCF"), compounded their unjustified removal of a seven-month-old child from her parents by acting not to protect the child, as the law and public policy required, but to protect themselves by self-serving efforts to justify their own prior actions. The complaint in that case alleged that the DCF defendants knew that their course of conduct was legally and factually unjustified, but that they persisted in it nonetheless. Those allegations, in turn, were supported by particular facts which, if proved, would reasonably support the plaintiff's claim of improper motive. In light of those allegations, the Supreme Court concluded that "if the defendants acted solely in order to justify their own prior unjustified conduct, and not to carry out the government policy with which that were entrusted, there would be no reason to provide immunity from suit." Shay, supra, 253 Conn. at 174. The agents' alleged conduct, the Court declared, was "sufficiently egregious to constitute conduct that was in excess of their statutory authority." Id. at 180.
Similarly, if a state employee acts solely to further an illegal scheme, and not to carry out government policy, there is no reason to provide sovereign immunity. Thus in Antinerella, supra, 229 Conn. at 497, the plaintiff, a deputy sheriff accused the High Sheriff of Hartford County of firing him in order to "take his business and personally benefit under the statutorily forbidden and illegal fee splitting arrangements he had made with several appointed deputy sheriffs." Id. at 491.
Such allegations of unlawful, self-serving conduct were deemed sufficiently egregious to state a claim not barred by sovereign immunity. In reaching that conclusion, it was important to the Court that the High Sheriff's alleged conduct contravened the clear public policy that high sheriffs may not engage in fee splitting. Id. at 493; Shay, supra, 253 Conn. at 169-70.
The actionable misconduct of state officials, as alleged in Antinerella and Shay, was engaged in solely for illegal, self-serving or other improper purposes, in clear violation of public policy. Because misconduct of that nature is "sufficiently egregious" to overcome the bar of sovereign immunity, the State's motion to dismiss must be denied if the plaintiff has alleged facts describing such misconduct in his challenged Complaint. 2. Declaratory or Injunctive Relief for Constitutional Violations by the State
The Court notes that there is considerable disagreement as to whether the "in excess of statutory authority" exception to the doctrine of sovereign immunity extends to claims for money damages as well as claims for injunctive and declaratory relief. This Court has previously ruled, in a case now pending before the Connecticut Supreme Court, that under Shay and Antinerella the exception applies both types of claims. See Prigge v. Ragaglia, Superior Court, judicial district of Waterbury at Waterbury, Docket No. 01-0167912 (April 11, 2002) (Sheldon, J.). Until the Prigge Court decides the issue, the Court will assume, as it previously decided, that claims for money damages may indeed be brought under the "in excess of statutory authority" exception to the sovereign immunity doctrine.
The second common-law exception to the doctrine of sovereign immunity is for claims for declaratory or injunctive relief from the State's unconstitutional actions. In a constitutional democracy, "sovereign immunity must relax its bar when suits against the government complain of unconstitutional acts." Barde v. Board of Trustees of Regional Comm. Colleges, 207 Conn. 59, 64, 539 A.2d 1000 (1988), quoting Sentner v. Board of Trustees, 184 Conn. 339, 343, 439 A.2d 1033 (1981). The sovereign people must be able to confront their government when it violates its constitutional limits. Horton v. Meskill, 172 Conn. 615, 623, 376 A.2d 359 (1977). Indeed, it A.2d 1033 (1981). The sovereign people must be able to confront their government when it violates its constitutional limits. Horton v. Meskill, 172 Conn. 615, 623, 376 A.2d 359 (1977). Indeed, it has been held that a declaratory judgment action is a "particularly appropriate vehicle" to litigate justiciable constitutional questions. Maloney v. Pac, 183 Conn. 313, 323, 439 A.2d 349 (1981); Horton, supra, 172 Conn. at 626-27.
This does not mean, however, that all allegations of constitutional violations by the State defeat sovereign immunity. "The allegations of such a complaint and the factual underpinnings if placed in issue, must clearly demonstrate an incursion upon constitutionally protected interests." Barde, supra, 207 Conn. at 64. A plaintiff who seeks declaratory relief from constitutional violations by the State bears a heightened burden of pleading. Id. Otherwise, plaintiffs could circumvent proper sovereign immunity claims by invoking empty constitutional phrases. The Court must focus on the substance of the plaintiff's allegations, not their labels he puts on them.
In this case, the Court must therefore inspect each and every claim for declaratory relief. Claims for declaratory relief based on non-constitutional claims are properly barred by the doctrine of sovereign immunity if so challenged, Fetterman v. University of Conn., 192 Conn. 539, 553, 473 A.2d 1176 (1984), because those claims do not disturb the foundation upon which the doctrine of sovereign immunity rests. But see Krozser v. New Haven, 212 Conn. 415, 421, 562 A.2d 1080 (1989), cert. denied sub nom. Krozser v. Connecticut, 439 U.S. 1036 (1990) (noting generally, in dicta, that "the state cannot use sovereign immunity as a defense in an action for declaratory or injunctive relief").
If a request for declaratory relief is based upon alleged constitutional violations — in label or in substance — which the plaintiff could have objected to or appealed from in the underlying deprivation complained of, he cannot now raise those claims because he has waived them.
3. Analysis of Plaintiff's Claims Under Exceptions to the Sovereign Immunity Doctrine
Since the State did not consent to this suit, the suit must be dismissed unless the plaintiff has alleged sufficient facts in his Complaint to draw the State out from behind the shield of sovereign immunity. The Court must inspect the plaintiff's factual allegations to determine if they state facts which, if credited, either describe conduct by State officials in excess of their statutory authority or clearly demonstrate an incursion by such officials upon the plaintiff's constitutionally protected rights. Barde, supra, 207 Conn. at 64.
The plaintiff has divided his Complaint into twenty-six counts, which the Court has inspected in detail. On the basis of that inspection, the Court reaches the following conclusions.
First Count
The First Count complains about the initial inspection of the plaintiff's pickup truck by DMV officials and subsequent repairs made to the vehicle, ostensibly to bring it into compliance with State emissions laws. The DMV was satisfied with the repairs, but the plaintiff was not. The plaintiff styles the DMV's conclusions and reports on this point "wanton act[s] of tort." Complaint at 9. Furthermore, the plaintiff alleges that an Assistant Attorney General (AAG) failed to take action against DMV "to ensure that DMV's decisions fell within the letter and spirit of the law" when the plaintiff contacted him to complain.
No factual allegation in the First Count implicates the plaintiff's constitutional rights. Moreover, while DMV officials may have been incorrect in their assessment of his vehicle or what was truly necessary to repair it correctly, their alleged errors, as the plaintiff describes them, were not engaged in solely for illegal, self-serving or other improper purposes, in clear violation of public policy, and thus were not "sufficiently egregious" to permit this action under the "in excess of statutory authority" doctrine. As for the AAG about whom the plaintiff complains, the plaintiff makes no specific allegations about the state of his knowledge or the nature of his alleged conduct. Without such allegations, the plaintiff has not pleaded a claim against him at all, much less one that survives the instant motion under any recognized exception to sovereign immunity.
Second Count
The gravamen of the Second Count is the plaintiff's claim that the DMV's attorney in the administrative enforcement proceeding, Thomas Ruby ("Mr. Ruby"), mishandled the administrative enforcement proceeding against Ralph's. According to the Complaint, Mr. Ruby gave the plaintiff inadequate notice of the rescheduled hearing where the Consent Agreement was negotiated, thereby denied him party status in that proceeding by nullifying his right to file a written petition seeking party status more than five days before that hearing, as required by General Statutes § 4-177a (a), denied him the right to present evidence against Ralph's at a hearing or to participate in settlement talks, and told him that he could not appeal from the settlement.
At all times relevant to this case, General Statutes § 4-177a (a) provided as follows:
The presiding officer shall grant a person status as a party in a contested case if that officer finds that: (1) Such person has submitted a written petition to the agency and mailed copies to all parties, at least five days before the date of hearing, and (2) the petition states facts that demonstrate that the petitioner's legal rights, duties or privileges shall be specifically affected by the agency's decision in the contested case.
There are three major problems with the plaintiff's factual allegations in the Second Count. First, those allegations are misdirected. Mr. Ruby represented the DMV as a party in the administrative enforcement proceeding. Hence he proceeded as an advocate in that proceeding, not as counsel for the plaintiff or as final decision maker for the agency. The plaintiff's allegations should have been directed against the DMV hearing officer. Second, if the plaintiff wished to challenge the final decision of the DMV hearing officer based upon his claimed inability to participate meaningfully in that proceeding, he could and should have filed an appeal from that final decision under General Statutes § 4-183. Having failed to do so when he could have, the plaintiff cannot now challenge the outcome of that proceeding in this collateral context. Third, the plaintiff has no basis for blaming others for his inability to become a party to the administrative enforcement proceeding, since the hearing was originally scheduled, with timely notice to the plaintiff almost three months before the date the parties settled the case. Yacavone Affidavit at ¶ 5(b). Hence, the plaintiff could easily have filed a timely application for party status had he wished to do so.
The balance of the Second Count alleges that the Consent Order could not be carried out as issued. The plaintiff alleges as follows: (1) the Consent Order agreed to have repair work performed on the truck; (2) the engine's precise identity was required to make repairs; (3) the engine in the truck had no identification number; and (4) therefore, the repairer could not possibly certify that the repairs were in accordance with the manufacturer's specifications. The Court rejects the proposition that a licensed auto mechanic could not repair an engine that Ford has been making since 1965 (240 cubic inch displacement six-cylinder) without an engine identification number. More to the point, however, the Court concludes that this plethora of claims and arguments has no constitutional content or significance whatsoever, and surely does not constitute the kind of unlawful, self-serving misconduct, clearly violative of public policy, that is actionable under the "in excess of statutory authority" exception to the doctrine of sovereign immunity.
Third Count
The Third Count alleges that after the administrative enforcement proceeding was settled by the Consent Agreement and Order, the DMV improperly responded to letters written to it on the plaintiff's behalf by the Governor's Office and the Office of then-State Senator James Maloney, to which the plaintiff had separately complained. The DMV allegedly made misrepresentations in response to those letters, then removed all related correspondence from its files.
All post-proceeding correspondence between the Governor's Office and the DMV, as well as that between the DMV and Senator Maloney, were matters of bureaucratic courtesy. It is of no moment that such correspondence was not placed in an official DMV file, for it had no effect at all upon the DMV's investigation, which was over, or the administrative enforcement proceeding, which had gone to judgment pursuant to the Consent Agreement and Order. Such correspondence thus had no effect on any of the plaintiff's substantive or procedural rights, constitutional or otherwise. Moreover, there is nothing in the Complaint to suggest that the conduct in question was engaged in for unlawful, self-serving purposes, in clear violation of public policy.
Fourth Count
The Fourth Count is analogous to the Third Count in two respects. First, it concerns alleged misconduct by the DMV, and in particular of its attorney, Mr. Ruby, in responding to certain post-proceeding correspondence from another State agency, the Office of the Attorney General, concerning the status of the plaintiff's complaint. Mr. Ruby, claims the plaintiff, falsely responded to an inquiry made on his behalf by AAG Cornelius Tuohy by "uphold[ing]" the Consent Agreement and Order and stating that the DMV was ready and willing to comply therewith, but could not do so because the plaintiff had declined to present his vehicle so that required repairs could be made. According to the plaintiff, the repairs in question could not be made because his engine could not be identified, and thus there could be no assurance that parts used to repair it would be in compliance with manufacturer's specifications. Second, the Fourth Count complains that after Mr. Ruby responded to AAG Tuohy, the DMV removed all related correspondence from its files.
Mr. Ruby's correspondence with AAG Tuohy did not take place in the context of an official proceeding. Instead, it was an act of inter-agency courtesy of no legal moment. The plaintiff's substantive and procedural rights did not depend upon it, as they had already been determined in the administrative enforcement proceeding in which he did not seek party status and from which he did not appeal. There was no reason why DMV should have kept a copy of the correspondence in their files, and plaintiff's claim that they should have is misguided. Nothing described in the Fourth Count implicates the plaintiff's constitutional rights or describes conduct in excess of statutory authority.
Fifth Count
The Fifth Count is based upon the DMV's alleged "uph[olding]" of the Consent Agreement and Order by which it settled the administrative enforcement proceeding despite receiving post-settlement input from the United States Environmental Protection Agency ("EPA") that the Order could not be complied with because the year of manufacture of the engine in his vehicle could not be identified. Complaint at 20. These allegations do not state a claim of constitutional dimension because the DMV's response to the EPA was not determinative of the plaintiff's rights. Those rights, to reiterate, had already been determined in the administrative enforcement proceeding, by the entry of the Consent Agreement and Order — a final decision from which the plaintiff did not appeal. The DMV's failure to vacate or modify its final Order in an administrative proceeding that had long been concluded did not constitute conduct in excess of statutory authority, moreover, since nothing in the General Statutes required it even to respond to such input.
Sixth Count
The Sixth Count alleges wrongdoing by the plaintiff's own attorney in the LoStocco action, and complains that the Statewide Grievance Committee's failure to discipline the attorney for such wrongdoing, based in part on the attorneys success at trial, set a "wrongful precedent" which this Court must now address. The actions of the Statewide Grievance Committee are not claimed to have violated any of the plaintiff's constitutional rights, nor is any such violation suggested by the plaintiff's allegations. The role of the Statewide Grievance Committee is to investigate claims of impropriety against Connecticut attorneys, not to adjudicate the substantive or procedural rights of the persons who make such claims of impropriety. Hence, even if the Statewide Grievance Committee committed gross misconduct in the handling of a disciplinary complaint against an attorney — and none is here alleged — the complainant would suffer no resulting loss or deprivation of his liberty or property. Nothing decided by the Committee would preclude the complainant from suing his attorney directly for any loss occasioned by the attorney's alleged misconduct.
Similarly, nothing in the Sixth Count describes conduct by the Committee in excess of their statutory authority. A simple claim that a State agent or official made an error in ruling on a grievance, and thereby set a "wrongful precedent," falls far short of alleging the kind of unlawful, self-serving or other improper conduct, in clear violation of public policy, that permits a claim to go forward under Shay and Antinerella.
Seventh Count
The Seventh Count is based upon the plaintiff's unsuccessful efforts to persuade the Office of Chief State's Attorneys to file criminal charges against certain persons in connection with this matter. After some correspondence and other communications between the plaintiff and his Office, the Chief State's Attorney decided not to prosecute a criminal case. Plaintiff's claim that he was "wrongly informed that his complaint lacked prosecutive merit" ignores the tremendous discretion vested in the office of the Chief State's Attorney. Prosecutors have "a wide latitude and broad discretion in determining when, who, why and whether to prosecute for violations of the criminal law." State v. Kinchen, 243 Conn. 690, 699-701, 707 A.2d 1255 (1998), quoting State v. Corchado, 200 Conn. 453, 460, 512 A.2d 183 (1985). The plaintiff's claim, as alleged in the Seventh Count, simply has no merit.
Eighth Count
The Eighth Count explains, in more detail than the Seventh Count, why the Chief State's Attorneys Office was allegedly wrong when it decided not to prosecute. For the reasons explained in the paragraph above, the discretion vested in the Office of the State's Attorney is not limited by the facts as alleged by a victim. For this reason, the Eighth Count fails to state a claim against the State, let alone a claim of unconstitutional conduct or conduct in excess of statutory authority. Despite the plaintiff's disbelief, this conduct is entirely consistent with that of a state official acting within the scope of his statutory duties.
Tenth Count
The plaintiff claims in the Tenth Count that attorneys from the Office of the Attorney General violated his rights by filing an appearance in the Salinas action, and thereby used their office "in a wonton [sic], reckless and malicious discharge of their duties beyond the scope of their employment or statutory authority." Complaint at 28. This claim betrays the plaintiff's fundamental misunderstanding as to what attorneys working for the Attorney General can lawfully do. Those attorneys appear for the State and its agents in cases in which the official acts and doings of those officers are called into question. General Statutes § 3-125. Simply, the AAGs who appeared for the defendants in the Salinas action did their jobs. They did not act in excess of their statutory authority or engage in any conduct violative of the plaintiff's constitutional rights.
Eleventh Count
The Eleventh Count alleges that the AAGs defending the Salinas action violated the plaintiff's "right to equal protection of the law through due process" by answering his complaint and offering special defenses to his claims. The "wanton and malicious statements of deceit" that gave rise to this claim appear to be the following special defenses pleaded by the State: (1) plaintiff's demands were a matter of administrative discretion; and (2) plaintiff had failed to cooperate with the consent order. Exposed to the light, plaintiff's grandiloquent allegations melt away. The claims of the Eleventh Count do not implicate constitutional concerns or the "in excess of statutory authority" doctrine because the AAGs who interposed them were simply doing their jobs in a lawful manner.
Twelfth Count
The Twelfth Count, like the Tenth and Eleventh Counts, is based upon actions by the State's attorneys in defending defendant DMV employees in the Salinas action instead of settling that action in a manner acceptable to the plaintiff. Because these actions were well within the attorneys statutory responsibilities and not at all violative of the plaintiff's constitutional rights, this claim does not fall within any common-law exception to the doctrine of sovereign immunity.
Thirteenth Count
The Thirteenth Count alleges various unprofessional and unethical actions on the part of AAGs involved in the defense of DMV employees in the Salinas action. Even if credited, such allegations do not give rise to a private cause of action against the State, let alone one based on clear violations of the plaintiff's constitutional rights or conduct in excess of the AAGs' statutory authority. Any claim that the plaintiff's substantive or procedural rights had been violated by the AAGs' alleged misconduct in defending the Salinas action could and should have been raised in the context of that action, by timely motion, objection or otherwise. An adverse decision by the trial court on any such motion or objection could later have been raised on appeal from an adverse judgment in that action. The plaintiff of course, prevailed in the Salinas action. It is therefore not clear how he claims to have been harmed by the misconduct he alleges in the Thirteenth Count. Moreover, his appeal from the final judgment in the Salinas action was dismissed as untimely by the Appellate Court. Therefore, it appears both that he did not suffer any actionable harm under any theory of liability, and that any harm he did suffer is ultimately attributable to his own failure to seasonably assert and protect his rights.
Fourteenth and Fifteenth Counts
The Fourteenth and Fifteenth Counts allege that the DMV and the Attorney General's Office violated the plaintiff's rights by continuing to defend State officials in the Salinas action after denial of the State's Motion for Summary Judgment (Fourteenth Count) and at trial (Fifteenth Count). These Counts fail to allege conduct falling within an exception to the sovereign immunity doctrine for the same reasons given in rejecting the claims presented in the Tenth, Eleventh, and Twelfth Counts, discussed above.
Sixteenth Count
The Sixteenth Count alleges that the DMV failed to produce certain evidence subpoenaed at the first trial of the Salinas action before Judge Allen. The proper remedy for such alleged misconduct was obviously to move for a court order in that proceeding. There is nothing that this Court could hope to do in this case to right any wrong the plaintiff suffered therein.
The first trial of the Salinas action, moreover, did not go to judgment because, as previously noted, Judge Allen passed away before she could issue her final decision. The plaintiff thus suffered no loss or deprivation of liberty or property rights as a result of the failure to produce the evidence in question at that trial. He has therefore failed to plead any colorable violation of his constitutional rights. correspondence. Just as DMV employees had the right to dispose of those documents as they saw fit, because no such document was received or responded to in the course of an ongoing proceeding where the plaintiff's substantive or procedural rights were at issue, the AAG handling the case had the right to defend those employees on that basis. Her conduct in so doing was not in excess of her statutory authority or in clear violation of the plaintiff's constitutional rights.
Eighteenth Count
The Eighteenth Count complains that the AAG defending DMV officials in the Salinas action violated his rights in that action by opposing his "Motion To Order DMV Employees Subpoenaed Provide All Documents Subpoenaed." The Motion was ostensibly filed for the purpose of requiring the DMV to produce all of its unofficial correspondence with other agencies and officials following the settlement of the administrative enforcement proceeding. The plaintiff hoped to use those documents to demonstrate that the final Order of the DMV in that proceeding could not be complied with.
The AAG allegedly violated the plaintiff's rights by opposing the plaintiff's Motion on the ground that all of the requested documents had already been disposed of by the DMV, and thus could not be produced. The plaintiff does not claim that this representation was untrue, or that it in any way impacted his ultimate ability to prevail in the Salinas action, which he did before Judge Hennessey. The AAG's truthful assertion that all documents requested by the plaintiff had already been disposed of is not actionable on any basis, let alone on the basis that it constituted conduct in excess of her statutory authority or in clear violation of the plaintiff's constitutional rights.
Nineteenth Count
The Nineteenth Count alleges that the AAG assigned to defend the Salinas action refused to accept service of subpoenas on behalf of other state officials, "in an unprofessional act against the plaintiff." Complaint at 37. Unprofessional conduct does not give rise to a private cause of action. See Rules of Professional Conduct, Scope. Furthermore, an attorney is under no legal obligation to accept service of a subpoena on behalf of her client. This Count thus alleges no actionable wrong, much less a wrong falling within a common-law exception to the doctrine of sovereign immunity.
Twentieth Count
The most important allegation in the Twentieth Count is that a subpoenaed DMV official failed to appear at the second trial of the Salinas action. When a subpoenaed witness fails to appear, the party who subpoenaed him can obtain a capias to compel his appearance. General Statutes § 52-143. If he did, he suffered no loss. If he did not, then he waived his right to do so and can blame no one but himself for any resulting loss or deprivation. Since the plaintiff prevailed in the Salinas action, moreover, it is not clear what harm the plaintiff could have suffered on account of the complained-of conduct. The Court thus concludes that the conduct here at issue constituted neither a clear violation of the plaintiff's constitutional rights nor conduct in excess of statutory authority.
Twenty-First Count
The Twenty-First Count, like the Fifteenth Count, realleges the plaintiff's claim that it was wrong for the State to defend the Salinas action, this time at trial. The Court is still not persuaded that such conduct was violative of the plaintiff's constitutional rights or engaged in in excess of the defendants' statutory authority.
Twenty-Second Count
The Twenty-Second Count details the plaintiff's frustration with the State's objections to the admission of various documents from the EPA that the plaintiff offered as evidence at trial. Each party has the right to object to evidence. It appears that the State objected to the admissibility of the documents in question on hearsay and/or foundation grounds. Without knowing more or less about the plaintiff's evidentiary offer, it appears to the Court that the AAGs were acting well within their statutory authority when they made such objections, and that, by so doing, they did nothing whatsoever to threaten the plaintiff's constitutional rights.
Twenty-Third Count
The Twenty-Third Count of the Complaint complains that the Salinas Court's granting of the State's post-trial Request for Clarification was based on "wantonly wrongful, deceitful and/or false arguments by the state." Without getting into detail as to the State's many challenged arguments, it seems clear to this Court that the defendants' attorney had the right to make them, and that if they were improper and led to an adverse decision, the plaintiff had the right to oppose them both at trial and on appeal. The plaintiff, of course, prevailed in the Salinas action, raising serious questions as to how the making of those arguments could have adversely affected his substantive or procedural rights. To the extent, moreover, that he was dissatisfied by Judge Hennessey's Clarification of her decision, he waived his right to appeal from that decision by filing a late appeal, which was later dismissed.
For the foregoing reasons, the claim set forth in the Twenty-Third Count is not actionable under any common-law exception to the doctrine of sovereign immunity.
Twenty-Fourth Count
The Twenty-Fourth Count explains how the DMV re-opened the plaintiff's complaint after the Salinas trial, granted the plaintiff intervenor status, and then summarily dismissed the complaint. While this must have been maddening to the plaintiff, the Court cannot discern any constitutional violation in the plaintiff's allegations, nor any facts that support an "in excess of statutory authority" claim. In fact, the logic of the Commissioner's explanation to the plaintiff of his actions is compelling.
Twenty-Fifth and Twenty-Sixth Counts
The Twenty-Fifth Count complains that the State Attorney General did not respond to a letter sent to him by the plaintiff after the conclusion of the Salinas action. Similarly, the Twenty-Sixth Count complains that State Senator Eric Coleman did not respond to the plaintiff's request for a special act authorizing a late claim to the Claims Commissioner under General Statutes § 4-148 (b). Since these two Counts do not allege any wrongdoing, they merit no further attention.
4. Failure Of Any Challenged Count To Support A Claim For Declaratory Relief
If any constitutional claims linger in the Complaint, they linger in the air, because there is no remedy available to this Court that would make the plaintiff whole for his losses. The plaintiff's use of the phrase "equal protection of the law through due process" does not transform his many complaints about State officials into alleged incursions upon constitutionally protected interests. After reviewing the balance of plaintiff's Complaint, the Court is unable to link any of his constitutional labels to particular factual allegations that clearly demonstrate incursions upon constitutionally protected interests.
This lawsuit is about conduct in the past. The only thing in genuine controversy — the only reason why this matter is a controversy — is the plaintiff's claim that he is entitled to recover money damages from the State. Although constitutional claims for declaratory and injunctive relief are ordinarily excepted from the doctrine of sovereign immunity, the declaratory relief plaintiff seeks in this case only serves to support his claim for money damages. Without his claim for money damages, the plaintiff has no interest in the outcome of this action by reason of danger of loss or of uncertainty as to his rights or other jural relations. Practice Book § 17-55. In other words, the plaintiff has no standing to bring any claim other than a claim for money damages, yet any such claim is clearly barred by sovereign immunity.
III. CONCLUSION
The State did not consent to this suit, either specifically, through the Claims Commissioner, or generally, through the General Statutes. The allegations and requests for relief of the plaintiff's Complaint do not bring this suit within one of the common-law exceptions to the doctrine of sovereign immunity. For these reasons, the State's Motion to Dismiss must be GRANTED.
It is so ORDERED this 7th day of April 2003.
Michael R. Sheldon, J.