Opinion
HHDCV176082066S
01-14-2020
State of Connecticut v. Joanne Avoletta et al.
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Shapiro, Robert B., J.T.R.
MEMORANDUM OF DECISION
ROBERT B. SHAPIRO JUDGE TRIAL REFEREE
On October 16, 2019, the court heard argument on the plaintiff State of Connecticut’s motion for summary judgment (#112). The State seeks summary judgment as to its action for declaratory judgment on the grounds that (1) the defendants are collaterally estopped from arguing that their claims are timely or that there is a legitimate public purpose for permitting their untimely claims to proceed; and (2) Special Act 17-4 is an unconstitutional public emolument, because it does not serve a legitimate public purpose and there is no evidence that the State committed a procedural error that prevented the defendants from complying with the statute of limitations. For the reasons set forth below, the court grants the motion for summary judgment.
I
Background
This case involves a long-standing dispute, initially brought by the defendants, Joanne Avoletta, Peter Avoletta, and Matthew Avoletta, against the plaintiff, the State of Connecticut (State), concerning the State’s alleged failure to provide Peter and Matthew with a free public education in a safe setting. See Avoletta v. State, 152 Conn.App. 177, 179, 98 A.3d 839, cert. denied, 314 Conn. 944, 102 A.3d 1116 (2014).
A
The 2007 Claim
The defendants filed a claim with the Claims Commissioner (Commissioner) on May 2, 2007, alleging that the defendants’ public school was not properly maintained and "incurred water leaks, bacteria, mold, dampness, and poor indoor air quality." Id., 179-80. The defendants further alleged that Peter and Matthew suffered physical ailments due to the poor conditions of the public school and, as to Matthew in particular, attendance at the public school was "medically contraindicted." (Internal quotation marks omitted.) Id., 180. Accordingly, the defendants enrolled Peter and Matthew in private schools at their own expense, and sought reimbursement from the State for the tuition and costs of their private education. Id.
Prior to filing a claim with the Commissioner, the defendants sought administrative remedies. Specifically, according to the exhibits submitted by both parties, the defendants sought a § 504 [of the federal Rehabilitation Act] accommodation, and brought a claim for alternative school placement under the federal Individuals with Disabilities Education Act [IDEA]. See Pl.’s Mem. in Supp. of Summ. J., Ex. G, pp. 62-66 (defendants’ attorney explaining to the Judiciary Committee the administrative remedies the defendants sought); Defs’ Mem. in Opp’n, Ex. A (Ms. Avoletta’s affidavit giving detailed explanation of administrative remedies sought); see also Avoletta v. State, supra, 152 Conn.App. 190.
Peter attended private school from August 2004 through June 2006. Matthew attended private school from August 2003 through June 2010. Id.
The Commissioner dismissed the defendants’ claim as untimely because it was not brought within the one-year statute of limitations set forth in General Statutes § 4-148(a), and the Commissioner, therefore, lacked subject matter jurisdiction to review the claim. See Avoletta v. State, supra, 152 Conn.App. 180. The defendants thereafter sought legislative review of the Commissioner’s decision pursuant to either General Statues § 4-148(a) or (b). Id., 180-81. The legislature approved Joint Resolution No. 11-34 (J.R. 11-34), vacating the Commissioner’s decision and authorizing the defendants to sue the State. Id., 181. On May 10, 2012, the defendants instituted an action in the Superior Court. Id.
General Statutes § 4-148(a) provides in relevant part: "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."
The State then filed a motion to dismiss. The Superior Court granted it on the grounds that the State was entitled to sovereign immunity and, therefore, the court lacked subject matter jurisdiction. Id., 182. Specifically, the Superior Court found that the defendants’ claim was untimely because the defendants "were clearly aware of the school conditions for more than a year before the May 2, 2007 filing with the claims commissioner." Avoletta v. State, Superior Court, judicial district of Hartford, Docket No. CV-12-5036221-S, 2013 WL 2350751, *7 (May 6, 2013, Sheridan, J.). The court was not persuaded by the defendants’ argument that the continuous course of conduct doctrine tolled the statute of limitations, holding that the doctrine "has no application after the plaintiff has discovered the harm." (Internal quotation marks omitted.) Id. Further, the court found that the legislature had failed to articulate a public purpose for allowing the defendants to pursue their untimely claim, and the court could find no such purpose in the legislative history. Id., *9. Accordingly, the court held that "[a]llowing the plaintiffs to file suit directly in this matter, when this court has determined that their action was untimely provides them a right unavailable to other parties. While the legislature need not enact a special act when vacating the claims commissioner’s dismissal of the matter, allowing a plaintiff with an untimely claim to circumvent § 4-148(b) without any explanation or public purpose, constitutes a public emolument when the action is untimely." Id.
The defendants appealed from the Superior Court’s decision, arguing in part that "the court applied the wrong standard of review because it disregarded certain factual allegations in the complaint and certain testimony that they gave to the legislature when the court determined that their action was untimely." Avoletta v. State, supra, 152 Conn.App. 190. The Appellate Court disagreed, noting, as the Superior Court did, that the defendants had discovered actionable harm when they first removed Peter and Matthew from the public school system in 2003 and 2004. See id., 192. Relying on its analysis in Morneau v. State, 150 Conn.App. 237, 260-62, 90 A.3d 1003, cert. denied, 312 Conn. 926, 95 A.3d 522 (2014), the court affirmed that J.R. 11-34 was an unconstitutional public emolument. See Avoletta v. State, supra, 150 Conn.App. 195.
"[The joint resolution] authorizes the plaintiff, and only the plaintiff, to commence a lawsuit against the state for his alleged injuries, as detailed in the claim presented to the Claims Commissioner. Notably absent in this case was a declaration that it served a public purpose, nor can we discern one. It merely provided the plaintiff with an exclusive and private benefit. No enactment creating a preference can withstand constitutional attack if the sole objective of the General Assembly is to grant personal gain or advantage go an individual ... Although we are mindful of the heavy burden assumed by those who challenge the constitutionality of legislative actions ... we conclude that the court properly determined that the resolution in the present case violated the state constitution’s prohibition against public emoluments ..." (Internal quotation marks omitted.) Avoletta v. State, supra, 152 Conn.App. 195, citing Morneau v. State, supra, 150 Conn.App. 261-62. The court then concluded that the joint resolution in Morneau was substantively identical to J.R. 11-34 and, therefore, the holding in Morneau should apply with equal force to the plaintiffs. See Avoletta v. State, supra, 152 Conn.App. 195.
B
The 2013 Claim
Thereafter, the defendants filed a notice of claim with the Commissioner, dated August 28, 2013, arguing, inter alia, that they were harmed by the legislature’s failure to articulate a public purpose in J.R. 11-34. See Pl.’s Mem. in Supp. of Summ. J., Ex. B. The State moved to dismiss this claim on a variety of grounds, including collateral estoppel, res judicata, and legislative immunity. See Pl.’s Ex. C. The Commissioner dismissed the defendants’ claim. See Pl.’s Ex. D. The defendants again appealed to the General Assembly, which approved Special Act No. 17-4 (S.A. 17-4) on June 13, 2017, authorizing the defendants to present their claims to the Commissioner. Pursuant to S.A. 17-4, the Commissioner issued a scheduling order requiring the parties to complete discovery, file dispositive motions, and participate in a hearing on the merits of the defendants’ claims.
The notice of claim also includes the 2007 claim. See Pl.’s Ex. B ("The claim is that the claimants suffered losses, well over $5000, 00, directly resulting from the negligence of the State as described and documented by the court, Sheridan, J., in its May 6, 2013 Memorandum of Decision ... Therefore, as a result of the State’s now documented gross negligence in failing to articulate its ‘public purpose’ in granting the claimants the right to sue, the claimants seek relief: (1) for the original negligence of the state amounting to at least $167, 302.00 ..."). For the purposes of this memorandum, however, all subsequent references to the 2013 claim will pertain only to the allegation that the state was negligent in failing to articulate a public purpose in J.R. 11-34.
Special Act 17-4 provides: "(a) Notwithstanding the failure to file a proper notice of a claim against the state with the clerk of the Office of the Claims Commissioner, within the time limitations specified by subsection (a) of section 4-148 of the general statutes, Joanne Avoletta, Peter Avoletta and Matthew Avoletta are authorized pursuant to the provisions of subsection (b) of section 4-148 of the general statutes to present their respective claims against the state to the Claims Commissioner. The General Assembly finds that there is a public purpose served by encouraging accountable state government through the full adjudication of cases involving persons who claim to have been injured by the conduct of state actors. The General Assembly further finds it just and equitable that the time limitations provided for in subsection (a) of section 4-148 of the general statutes be tolled in a case such as this, involving claimants who initially filed notice of their claims against the state with the Claims Commissioner on May 2, 2007, for injuries that are alleged to have accrued on September 15, 2006, which allegations, if viewed in a light most favorable to the claimants, provide notice to the state of their claims within the statute of limitations for injuries to their person. The General Assembly deems such authorization to be just and equitable and finds that such authorization is supported by compelling equitable circumstances and would serve a public purpose. Such claims shall be presented to the Claims Commissioner not later than one year after the effective date of this section. "(b) The state shall be barred from setting up the failure to comply with the provisions of sections 4-147 and 4-148 of the general statutes, from denying that notice of the claims was properly and timely given pursuant to sections 4-147 and 4-148 of the general statutes and from setting up the fact that the claims had previously been considered by the Claims Commissioner, by the General Assembly or in a judicial proceeding as defenses to such claims." Pl.’s Ex. H.
On September 15, 2017, the State filed a complaint for declaratory relief with this court, seeking a determination that S.A. 17-4 is an unconstitutional public emolument that violates article first, § 1, of the Connecticut constitution. The State also filed a motion to stay the proceedings before the Commissioner, pending the court’s resolution of this case. See Pl.’s Mem. in Supp., p. 7. Presently before the court is the State’s motion for summary judgment (#112) on the grounds that (1) the defendants are collaterally estopped from arguing that their claims are timely or that there is a legitimate public purpose for permitting their untimely claims to proceed; and (2) S.A. 17-4 is an unconstitutional public emolument because its purported public purpose ("encouraging accountable state government through the full adjudication of cases involving persons who claim to have been injured by ... state actors") is not legitimate, and there is no evidence that the State committed a procedural error that prevented the defendants from complying with the statute of limitations. In support of the motion, the State has submitted: (1) the Commissioner’s memorandum of decision granting summary judgment on the 2007 claim, dated April 3, 2009; (2) the defendants’ 2013 notice of claim; (3) the State’s motion to dismiss the 2013 claim before the Commissioner; (4) the Commissioner’s order granting the motion to dismiss, dated May 1, 2014; (5) the defendants’ attorney’s testimony in support of Senate Bill 817 (SB 817); (6) the defendants’ attorney’s fact sheet in support of SB 817; (7) the Joint Standing Committee Hearings Transcript, dated February 24, 2017; (8) and S.A. 17-4.
In the defendants’ opposition memorandum, they make a distinction between their 2007 claim, which alleged harm by the State Attorney General and the State Department of Education in failing to compel the school district to provide a safe school setting, and their 2013 claim, which alleged that the General Assembly was negligent in adopting J.R. 11-34 without articulating a public policy purpose pursuant to § 4-148(b), thereby causing the court to dismiss the claim as an unconstitutional public emolument. Specifically, with regard to the 2007 claim, the defendants argue, inter alia, that the untimeliness of the claim was caused by the State’s promises, and that S.A. 17-4 serves a legitimate public purpose. As to the 2013 claim, the defendants argue that it was timely filed and, even if it was untimely, S.A. 17-4 authorizes it to proceed. In support, the defendants have submitted, inter alia: (1) an affidavit by Ms. Avoletta; (2) correspondence to and from Ms. Avoletta, the Attorney General, the State Commissioner of Education, and other state actors; (3) a retainer agreement for legal representation at § 504 meetings and/or administrative hearings; (4) the defendants’ objection to the State’s motion to dismiss the 2013 claim before the Claims Commissioner; (5) the July 19, 2017 Scheduling Order notice; and (6) an e-mail from the Claims Commissioner’s clerk.
This memorandum was originally submitted on July 17, 2018 (#122). On August 20, 2019, it was resubmitted to comply with the Practice Book (#133).
The State filed a reply, on September 23, 2019, in which it argues, inter alia, that the 2007 claim was the only claim that the legislature identified and purported to authorize in S.A. 17-4 and, even if it could be construed to authorize the 2013 claim, the only issue would be whether the State can be held liable for a failure to articulate a public purpose and not whether it can be held liable for any purported injuries caused by alleged conditions in the Torrington schools.
II
Standard of Review
The legal standard governing summary judgment motions is well settled. "Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law ... The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried ... However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury ... the moving party for summary judgment is held to a strict standard ... of demonstrating his entitlement to summary judgment." (Citation omitted; footnote omitted; internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 534-35, 51 A.3d 367 (2012). "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Graham v. Commissioner of Transportation, 330 Conn. 400, 414-15, 195 A.3d 664 (2018).
"[S]ummary judgment is an appropriate vehicle for raising a claim of res judicata ..." (Citations omitted.) Joe’s Pizza, Inc. v. Aetna Life & Casualty Co., 236 Conn. 863, 867 n.8, 675 A.2d 441 (1996). Likewise, because the doctrine of sovereign immunity implicates subject matter jurisdiction; Housatonic Railroad Co. v. Commissioner of Revenue Services, 301 Conn. 268, 274, 21 A.3d 759 (2011); and "[t]he requirement of subject matter jurisdiction cannot be waived by any party and can be raised at any stage in the proceedings," it is appropriate to address that issue on summary judgment. (Internal quotation marks omitted.) Bellman v. West Hartford, 96 Conn.App. 387, 392, 900 A.2d 82 (2006); see also Manifold v. Ragaglia, 94 Conn.App. 103, 119-20, 891 A.2d 106 (2006).
III
Discussion
The legal principles that govern actions brought against the State under chapter 53 of the General Statutes are as follows. "We have long recognized the common-law principle that the state cannot be sued without its consent." (Internal quotation marks omitted.) Lagassey v. State, 268 Conn. 723, 732, 846 A.2d 831 (2004). "[T]o circumvent the strong presumption of sovereign immunity in an action for monetary damages, the burden is on the plaintiff to show that ... the legislature, either expressly or by force of a necessary implication, statutorily waived the state’s sovereign immunity ... In the absence of a statutory waiver of sovereign immunity, the plaintiff may not bring an action against the state for monetary damages without authorization from the claims commissioner to do so." (Internal quotation marks omitted). Avoletta v. State, supra, 152 Conn.App. 183.
"Pursuant to § 4-148(a), a claim presented under chapter 53 must be presented [to the Commissioner] within one year after it accrues." Lagassey v. State, supra, 268 Conn. 732. A "claim" is defined as "a petition for the payment or refund of money by the state or for permission to sue the state." General Statutes § 4-141(1). Claims "are considered 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 ..." (Internal quotation marks omitted.) Kelly v. University of Connecticut Health Center, 290 Conn. 245, 252, 963 A.2d 1 (2009). "In this regard, the term injury is synonymous with legal injury or actionable harm. Actionable harm occurs when the plaintiff discovers, or in the exercise of reasonable care, should have discovered the essential elements of a cause of action ... A breach of duty by the defendant and a causal connection between the defendant’s breach of duty and the resulting harm to the plaintiff are essential elements of a cause of action in negligence; they are therefore necessary ingredients for actionable harm ... Furthermore, actionable harm may occur when the plaintiff has knowledge of facts that would put a reasonable person on notice of the nature and extent of an injury, and that the injury was caused by the negligent conduct of another ... [T]he harm complained of need not have reached its fullest manifestation in order for the limitation period to begin to run; a party need only have suffered some form of actionable harm." (Citation omitted; emphasis omitted; internal quotation marks omitted.) Id., 253-54.
"Notwithstanding a claimant’s failure to comply with the limitation period set forth in subsection (a), § 4-148(b) ... allows the General Assembly to pass a special act authorizing an untimely claim if it finds compelling equitable circumstances and public purpose. Although § 4-148(b) provides that [s]uch finding shall not be subject to review by the Superior Court, special acts passed in this manner are subject to review nonetheless under the public emoluments clause contained in article first, § 1, of the state constitution." (Citation omitted; internal quotation marks omitted). Lagassey v. State, supra, 268 Conn. 733.
Article first, § 1, of the constitution of Connecticut provides: "All men when they form a social compact, are equal in rights; and no man or set of men are entitled to exclusive public emoluments or privileges from the community."
"To prevail under article first, § 1, of our constitution, the state must demonstrate that the sole objective of the General Assembly is to grant personal gain or advantage to an individual ... If, however, an enactment serves a legitimate public purpose, then it will withstand a challenge under article first, § 1 ... [W]hat constitutes a public purpose is primarily a question for the legislature, and its determination should not be reversed by the court unless it is manifestly and palpably incorrect ... In determining whether a special act serves a public purpose, a court must uphold it unless there is no reasonable ground upon which it can be sustained ... Thus, if there be the least possibility that [the special act] will be promotive in an degree of the public welfare ... we are bound to uphold it against a constitutional challenge predicated on article first, § 1 [of the state constitution] ...
"In this regard, although a special act passed under § 4-148(b) will undoubtedly confer a direct benefit upon a particular claimant, we have found a public purpose if it remedies an injustice done to that individual for which the state itself bears responsibility ... In such circumstances, the benefit conferred upon a private party by the legislature may be viewed as incidental to the overarching public interest that is served in remedying an injustice caused by the state ... By contrast, we have consistently held that legislation seeking to remedy a procedural defect for which the state is not responsible does not serve a public purpose and, accordingly, runs afoul of article first, § 1, of the state constitution ... Thus, legislation cannot survive a constitutional challenge under article first, § 1, if it excuses a party’s failure to comply with a statutory notice requirement simply because the noncompliance precludes consideration of the merits of the party’s claim ... Similarly, where a special act has allowed a person named therein to bring a suit based upon a statutory cause of action that would otherwise be barred for failure to comply with a time limit specified in the statute, we have ordinarily been unable to discern any public purpose sufficient to sustain the enactment." (Citation omitted; emphasis in original; internal quotation marks omitted.) Kelly v. University of Connecticut Health Center, supra, 290 Conn. 257-59.
A
The 2007 Claim
With regard to the defendants’ 2007 claim, it was already litigated and the court (Sheridan, J.) determined that it was untimely, and the Appellate Court affirmed that decision. See Avoletta v. State, supra, 152 Conn.App. 193. Accordingly, this issue is barred from relitigation, by the doctrine of collateral estoppel. See Doyle v. Universal Underwriters Ins. Co., 179 Conn.App. 9, 14-15, 178 A.3d 445 (2017) ("[C]ollateral estoppel precludes a party from relitigating issues and facts actually and necessarily determined in an earlier proceeding between the same parties or those in privity with them upon a different claim ... An issue is necessarily determined if, in the absence of a determination of the issue, the judgment could not have been validly rendered ... For collateral estoppel to apply, the issue concerning which relitigation is sought to be estopped must be identical to the issue decided in the prior proceeding."[Citation omitted; internal quotation marks omitted.]). Because the 2007 claim is untimely, it can only proceed pursuant to § 4-148(b) if S.A. 17-4 serves a legitimate public purpose, otherwise it will constitute an unconstitutional public emolument because it grants the defendants a private benefit that is not otherwise available to the public.
Contrary to the State’s argument, collateral estoppel does not preclude litigation of this issue, because S.A. 17-4 was not a part of the previous litigation. Moreover, unlike J.R. 11-34, S.A. 17-4 articulates a public purpose and authorizes the defendants to present their claims to the Commissioner pursuant to General Statutes § 4-148(b). See Avoletta v. State, supra, 152 Conn.App. 193 ("allowing a plaintiff with an untimely claim to circumvent § 4-148(b) without any explanation or public purpose, constitutes a public emolument when the action is untimely" [emphasis added; internal quotation marks omitted]). Additionally, the court rejects the State’s argument that the prior Superior Court and Appellate Court decisions should be read as holding that no conceivable public purpose exists for allowing the defendants to present their untimely 2007 claim. The Appellate Court’s statement that it was unable to "discern" a public purpose, is much different than a statement that the legislature could not possibly articulate a sufficient public purpose under the facts of this case. Avoletta v. State, supra, 152 Conn.App. 195.
Special Act 17-4 states that the General Assembly (1) "finds that there is a public purpose served by encouraging accountable state government through the full adjudication of cases involving persons who claim to have been injured by the conduct of state actors"; and (2) "deems such authorization to be just and equitable and finds that such authorization is supported by compelling equitable circumstances and would serve a public purpose." This declaration, however, is not dispositive on the issue of whether a public purpose exists. See Kelly v. University of Connecticut Health Center, supra, 290 Conn. 259-60 ("[A] mere declaration within a particular special act that it serves the public interest is not enough ... [T]he fact that the legislature stated that the special act served a public purpose does not change the pertinent inquiry for the court ... Indeed [t]he legislature cannot by mere fiat or finding, make public a truly private purpose" [citation omitted; internal quotation marks omitted]).
Here, S.A. 17-4 specifically authorizes the defendants to present their claims against the State to the Commissioner, despite their initial untimely filing. Special Act 17-4 "neither excuses other persons similarly situated from complying with the statutory limitations nor provides circumstances under which such persons may be excused." Kinney v. State, 285 Conn. 700, 714, 941 A.2d 907 (2008). Accordingly, although S.A. 17-4 purports to benefit more than just the defendants by "encouraging accountable state government," it does not permit any litigants other than the defendants to seek relief for injuries allegedly caused by state actors outside of the limitations period. As such, the General Assembly has granted the defendants alone a personal right not generally available to others similarly situated. Under such circumstances, the Connecticut Supreme Court has said that it is ordinarily unable to discern any public purpose sufficient to sustain the enactment. See Merly v. State, 211 Conn. 199, 213, 558 A.2d 977 (1989) ("Under circumstances like those in the present case, where a special act has allowed a person named therein to bring a suit based upon a statutory cause of action that would otherwise be barred for failure to comply with a time limit specified in the statute, we have ordinarily been unable to discern any public purpose sufficient to sustain the enactment"); see also Kinney v. State, supra, 285 Conn. 708-09 ("We conclude that, although well intentioned, S.A. 94-13 benefits no member of the public other than the plaintiff and remedies a procedural default arising from the plaintiff’s failure to file a claim with the claims commissioner [within the time required by statute]").
In Kinney, the court addressed a public act that permitted the plaintiff to bring an untimely negligence action against the state. Sec Kinney v. State, supra, 285 Conn. 704. The plaintiff there claimed that allowing her claim would serve the public purpose of encouraging a work ethic among all government employees. Id., 713. The court determined that this was not a legitimate public purpose and struck down the public act as an exclusive public emolument. See id., 716. The court reasoned that "nothing in the record of the present case distinguishes its facts from the ordinary case in which a litigant fails to take timely action. Rather than filing a claim with the claims commissioner as her first course of action or concurrently with her pursuit of administrative and judicial remedies, the plaintiff chose to pursue her claim against the state only through administrative and judicial proceedings. Special Act 94-13 essentially would eliminate for her alone the consequences of her litigation choice and would provide no relief to anyone else who either made a similar erroneous litigation choice or who mistakenly believed that exhaustion of administrative and judicial remedies was required before filing a claim with the claims commissioner." Id., 715.
The same logic extends to the present matter. Here, the defendants’ claim was untimely because, rather than filing it with the claims commissioner, as the first course of action or concurrently with the defendants’ pursuit of administrative remedies, the defendants only pursued administrative remedies. Therefore, S.A. 17-4 would eliminate for the defendants alone the consequences of their litigation choice, which amounts to an exclusive public benefit violative of the public emoluments clause.
To the extent that the defendants contend that there is a genuine issue of material fact regarding whether S.A. 17-4 remedies an injustice done to the defendants, for which the State is responsible, the court disagrees. Specifically, the defendants argue that they, in good faith, relied on (1) the Attorney General’s acknowledgment that the State had a duty to provide a safe school setting for the children; and (2) his directive to the Commissioner of Education to take appropriate corrective action, and that such reliance unjustly prevented them from bringing a timely claim against the State. See Defs.’ Mem. in Opp’n, pp. 4-5. Citing the doctrine of promissory estoppel, the defendants reason that the Attorney General’s statements constitute a promise that the State would create a safe school setting, which caused them to "change their position, for the worse, by forbearing to file a claim with the Claims Commissioner ... until after the Attorney General did his about face, telling the Defendants he would do no more and that they should seek private counsel." Id., 6.
"A promise is a manifestation of intention to act or refrain from acting in a specified way, so made as to justify a promisee in understanding that a commitment has been made." 1 Restatement (Second), Contracts § 2 (1981). "A promise will be enforced absent consideration under the doctrine of promissory estoppel, when the promisor should reasonably expect the promise to cause the promisee to change his or her position, the promisee’s reliance on the promise is justified, and injustice can be avoided only by enforcement of the promise." T. Merrit, 16 Connecticut Practice Series: Elements of an Action (2019) § 4.31. "A fundamental element of promissory estoppel ... is the existence of a clear and definite promise which a promisor could reasonably have expected to induce reliance." D’Ulisse-Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 213, 520 A.2d 217 (1987).
Here, the Attorney General never made a promise to the defendants. The defendants’ own evidence indicates that the Attorney General wrote two letters to Ms. Avoletta: one on March 10, 2004, and the other on September 15, 2006. The defendants do not claim to have relied on the latter. Therefore, for the purposes of the promissory estoppel inquiry, the March 10 letter must contain the requisite clear and definite promise that the State should have reasonably expected to induce the defendants’ reliance. There is no such promissory language. The only language in the letter that even relates to the Attorney General’s action states that "in response to these concerns that are shared by others in your community, I recently wrote to the Commissioners of the Department of Public Health and Education asking them to investigate the leaky roof at the Torrington Middle School- and its purported harmful heath consequences." (Emphasis added.) Defs.’ Mem. in Opp’n, Ex. B. This is not a definite promise to improve the indoor air quality of the schools and/ or make Ms. Avoletta whole for having to remove her children from Torrington public schools and send them to private school.
Moreover, in the last sentence of the March 10 letter, the Attorney General states, "[p]lease do not hesitate to contact me should you require additional information or assistance." Id. This plainly indicates that the Attorney General would not do anything further for Ms. Avoletta unless she contacted him requesting something further. When "judged by an objective standard," the State had no reason to expect that Ms. Avoletta would rely on this communication to forebear seeking reimbursement for tuition and costs associated with sending her children to private school, which is the remedy the defendants sought in their untimely claim. D’Ulisse-Cupo v. Board of Directors of Notre Dame High School, supra, 202 Conn. 213.
As of the date that Mrs. Avoletta sent her initial correspondence to the Attorney General, on February 12, 2004, she said that she had already removed her son from the Torrington schools. See Defs.’ Ex. B. Thus, she was already incurring the type of damages for which she would ultimately seek to recover.
Additionally, Ms. Avoletta’s subsequent letter to the Attorney General, dated February 7, 2006, suggests that she was not relying on him to remedy the allegedly unsafe school conditions. Specifically, she (1) acknowledges that the Attorney General had previously told her to contact him if she required additional information and assistance; (2) says that since 2004 she has attempted to seek only what is due her children but is now facing defeat; and (3) states "[p]lease help us Mr. Blumenthal." Defs.’ Ex. B. Similarly, in an e-mail Ms. Avoletta sent to Ms. Karla Turekian on April 18, 2006, she states, inter alia, "the fact that the Attorney General’s Office has shown some interest is shining like a beacon of hope." Id. This language indicates that, contrary to the defendants’ argument, Ms. Avoletta understood that the Attorney General had not made any promise to remedy the situation.
Furthermore, the Attorney General’s statements to the Commissioner of Education, that the State has a statutory duty to provide a safe school environment for its students and that the State Department of Education must ensure compliance with that statutory mandate, do not justify the defendants’ decision to wait years to file a claim to recover damages for the State’s alleged breach of this duty. Rather, these statements should have indicated to the defendants that they may have had a cause of action, at that time, for negligence.
The letter in which the Attorney General made these statements to the Commissioner of Education was dated July 27, 2004. The defendants filed their claim on May 2, 2007. See Defs.’ Mem. in Opp’n, p. 6.
In Kelly, the Connecticut Supreme Court was faced with a claim that the defendant’s continued reassurances unjustly prevented him from bringing a timely claim against the State. See Kelly v. University of Connecticut Health Center, supra, 290 Conn. 260. There, the court determined that "[a]ny such reassurances ... do not amount to the kind of procedural default for which the state can be held responsible. There is simply nothing in the record that indicates that the defendant committed any procedural mistake that contributed to the plaintiff’s failure to file his claim with the claims commissioner within the one year limitation period." (Emphasis in original.) Id.
The same can be said here. The Attorney General’s statement that the State had a duty to provide a safe school environment and his directive to the Education Commissioner to investigate and remedy any issues do not constitute a procedural mistake. Moreover, whether the State remedied the allegedly unsafe school conditions did not affect the defendants’ ability to bring a claim to recover the cost of private school tuition as soon as the children began attending private school. The defendants simply made the erroneous litigation choice to proceed solely with administrative remedies first. See Kinney v. State, supra, 285 Conn. 715; see also Pl.’s Mem. in Supp. of Summ. J., Ex. G, pp. 62-66 (defendants’ attorney explaining to the Judiciary Committee the administrative remedies the defendants sought); Defs’ Mem. in Opp’n, Ex. A (Ms. Avoletta’s affidavit giving detailed explanation of administrative remedies sought).
The page numbers referenced here, refer to the PDF pages of the State’s memorandum as a whole, not to the page numbers on the Judiciary Committee hearing transcript itself. All page citations to the State’s memorandum in this decision refer to said PDF page numbers.
Unlike in Chotkowski v. State, 240 Conn. 246, 254, 690 A.2d 368 (1997), where the court held that a special act "predicated upon an express legislative finding that the plaintiff failed to timely file a notice of a claim against the state ... because he was misinformed by a state official and was misled by such official into believing that he had no right of redress against the state for the damage she allegedly suffered" did serve a legitimate public purpose, the defendants here were not misinformed or misled by the Attorney General. (Emphasis added; internal quotation marks omitted.)
Likewise, the facts in the instant matter are distinguishable from those in Sanger v. Bridgeport, 124 Conn. 183, 198 A. 746 (1938), where the plaintiff alleged that, after giving all the essential facts to a city clerk and relying on that clerk to prepare a notice to the city regarding injuries arising from a defective sidewalk, the clerk prepared a deficient notice that prevented the plaintiff from bringing the claim. Here, the defendants’ evidence does not present any mistake by a government official that prevented them from bringing a timely claim.
In light of the foregoing, S.A. 17-4 does not serve a legitimate public purpose and, thus, is an unconstitutional public emolument.
The defendants’ contention that the court is precluded from determining the issues before it because the Commissioner is a necessary and indispensable party, pursuant to General Statutes § 52-107, must fail because the Commissioner does not have a sufficiently significant interest in the outcome of the litigation and the State will adequately represent the Commissioner’s interests. See Kerrigan v. Commissioner of Public Health, 279 Conn. 447, 456-58, 904 A.2d 137 (2006) ("An applicant for intervention has a right to intervene ... where the applicant’s interest is of such a direct and immediate character that the applicant will either gain or lose by the direct legal operation and effect of the judgment ... [A] person or entity does not have a sufficient interest to qualify for the right to intervene merely because an impending judgment will have some effect on him, her, or it. The judgment to be rendered must affect the proposed intervenor’s direct or personal rights, not those of another" [citation omitted; internal quotation marks omitted]).
B
The 2013 Claim
As to the defendants’ 2013 claim, it accrued on May 6, 2013, when the court (Sheridan, J.) dismissed the defendants’ lawsuit on the grounds that J.R. 11-34, which circumvented § 4-148(b) and authorized them to bring an untimely claim without any indication of a public purpose in the resolution or the legislative history, violated the state constitution’s prohibition against public emoluments. See Avoletta v. State, supra, Superior Court, Docket No. CV- 125036221-S, 2013 WL 2350751, *9. This is so, because viewing the evidence in the light most favorable to the defendants, this is the point at which they should have discovered the essential elements of the alleged negligence claim against the State for its failure to articulate a public purpose. The defendants filed their notice of claim with the Commissioner on August 12, 2013, which is within the one-year limitation period provided in § 4-148(a). See Pl.’s Ex. B. Thus, the claim was timely presented and the Commissioner had subject matter jurisdiction to review it. The Commissioner dismissed the claim. See Pl.’s Ex. D. The defendants then requested that the General Assembly review and vacate the decision, and thereby waive sovereign immunity. See Pl.’s Ex. F, p. 50; see also General Statutes § 4-158(b)(1); Morneau v. State, supra, 150 Conn.App. 250-51. The defendants’ request resulted in the proposal of Senate Bill 817, which became S.A. 17-4. See Pl.’s Ex. F, p. 50.
"Whether the legislature has waived the state’s sovereign immunity protection raises a question of statutory interpretation." DaimlerChrysler Corp. v. Law, 284 Conn. 701, 712, 937 A.2d 675 (2007). "When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature." (Internal quotation marks omitted.) Joseph General Contracting, Inc. v. Couto, 317 Conn. 565, 586, 119 A.3d 570 (2015). "General Statutes § 1-2z provides that [t]he meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield unworkable results, extratextual evidence of the meaning of the statute shall not be considered. When the meaning of a statute is not plain and unambiguous, however, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter." (Internal quotation marks omitted.) DaimlerChrysler Corp. v. Law, supra, 284 Conn. 712-13.
Special Act 17-4, by its terms, does not apply to the 2013 claim. To wit, it states that it authorizes the defendants to present their respective claims to the Commissioner, pursuant to § 4-148(b), despite their failure to file a timely notice of claim, but the 2013 claim was not untimely. In other words, since § 4-148(b) only grants the General Assembly the authority to authorize untimely claims and the 2013 claim was not untimely, S.A. 17-4 does not authorize the 2013 claim.
Additionally, S.A. 17-4 specifically refers to dates that are only relevant to the 2007 claim, not the 2013 claim. See Pl.’s Ex. B ("The General Assembly further finds it just and equitable that the time limitations ... be tolled in a case such as this involving claimants who initially filed notice of their claims against the state with the Claims Commissioner on May 2, 2007, for injuries that are alleged to have accrued on September 15, 2006 ..."). This indicates that the legislature did not intend for S.A. 17-4 to waive sovereign immunity with respect to the 2013 claim. See Martinez v. Dept. of Public Safety, 263 Conn. 74, 86, 818 A.2d 758 (2003) ("The state’s sovereign right not to be sued may be waived by the legislature, provided clear intention to that effect is disclosed by the use of express terms or by force of a necessary implication" [emphasis omitted; internal quotation marks omitted]). Because the plain text of S.A. 17-4 is unambiguous it is unnecessary to consider extratextual evidence.
However, assuming arguendo that the text could be considered ambiguous, the legislative history of S.A. 17-4 likewise supports the conclusion that the General Assembly did not intend to waive sovereign immunity for the 2013 claim. During the Judiciary Committee hearing, the discussion of S.B. 817 focused almost exclusively on the merits of the 2007 claim.
See Pl.’s Ex. G. The legislature’s failure to articulate a public purpose, which is the only allegation that differentiates the 2013 claim from the 2007 claim, was mentioned a couple of times, however, at no point was it made clear that the defendants were seeking to recover money damages for such failure. This indicates that the legislature was most concerned with the issues related to the 2007 claim, and intended for S.A. 17-4 to authorize the defendants to present that claim to the Commissioner, not the 2013 claim against itself.
Common-law principles on the topic of sovereign immunity further support the conclusion that S.A. 17-4 should be construed as authorizing only the 2007 claim, not the 2013 claim. For instance, "our law recognizes that statutes in derogation of sovereign immunity are strictly construed ... Where there is any doubt about their meaning or intent, we should give them the effect that makes the least rather than the most change in sovereign immunity ... [n]othing can be taken by implication against the state." (Citations omitted; internal quotation marks omitted.) Morneau v. State, supra, 150 Conn.App. 250. Here, when S.A. 17-4 is strictly construed and given the effect that makes the least rather than the most change, it only waives sovereign immunity with regard to the defendants’ 2007 claim, not the 2013 claim. Absent such a waiver, with regard to the 2013 claim, the State is entitled to sovereign immunity and therefore the court lacks subject matter jurisdiction.
CONCLUSION
For the foregoing reasons, the court grants the State’s motion for summary judgment.
Furthermore, to the extent that the defendants argue that S.A. 17-4 is a curative act, and thus can correct the defects of J.R. 11-34 and authorize the claim, that argument fails. "Curative laws are subject to the same constitutional limitations which apply to other legislation." 2 Sutherland, Statutes and Statutory Construction (7th Ed.) § 41:12, p. 508. "Although a curative act may validate any past action that the legislature might originally have authorized, we have held that [c]urative acts cannot cure a want of authority to act at all." (Internal quotation marks omitted.) State v. Blasko, 202 Conn. 541, 556, 522 A.2d 753 (1987); see also Montgomery v. Branford, 107 Conn. 697, 142 A. 574 (1928) ("A statute will not be permitted to act retrospectively so as to validate what was before void because in conflict with state or Federal Constitution. Our General Assembly was without power to validate what it could not constitutionally authorize"). Accordingly, because both S.A. 17-4 and J.R. 11-34 are unconstitutional public emoluments, S.A. 17-4 cannot validate J.R. 11-34.