Opinion
No. CV06-4020925
April 27, 2006
MEMORANDUM OF DECISION ON DEFENDANT'S MOTION TO DISMISS
The defendant union moves, pursuant to Practice Book § 10-30 et seq., for dismissal of the plaintiff, town of Bloomfield's application to vacate an arbitration award. The subject arbitration award, issued December 28, 2005, reinstated police officer Donald Rajtar to the position of patrol officer with the plaintiff town. In its application, the plaintiff claims this reinstatement of a police officer violates public policy regarding "the necessity of truthfulness and honesty in law enforcement," (¶ 26), and the award also "violates § 52-418(a)(4) of the Connecticut General Statutes in that the panel exceeded its powers or so imperfectly executed them that a mutual, final and definite award upon the subject matters was not made . . ." (¶ 27).
By standard civil summons dated January 26, 2006, with a return date of February 28, 2006, the plaintiff commenced its application to vacate. The complaint was filed in court on February 2, 2006, more than 30 days beyond the date of the arbitration award. The defendant union claims the action should be dismissed because (1) it fails to comply with the requirement that application to vacate arbitration award be filed within thirty days of notice of the arbitration award as required by General Statutes § 52-420(b); (2) it was commenced via writ, summons and complaint rather than an order to show cause and accompanying citation, as required by General Statutes § 52-418 and Practice Book § 23-1; and (3) the plaintiff failed to provide timely notice of the application to the Connecticut State Board of Mediation and Arbitration and the Office of the Attorney General as required by General Statutes § 52-418(c).
The plaintiff has objected to the motion to dismiss. Both parties filed briefs. The court heard oral argument on April 17, 2006. For the following reasons, the motion to dismiss is denied in part and granted in part.
I Standard of Review
A Motion to Dismiss properly attacks the jurisdiction of the court, essentially asserting that the petitioner cannot, as a matter of law in fact state a cause of action that should be heard by the court . . . A court deciding a Motion to Dismiss must determine not the merits of the claim or even its legal sufficiency, but rather, whether the clam is one that the court has jurisdiction to hear and decide . . . A Motion to Dismiss tests inter alia, whether, on the face of the record, the court is without jurisdiction . . . Administrative and Residual Employees Union, Local 4200, AFT-CSFT, AFL-CIO v. State of Connecticut, 77 Conn.App. 454, 456-57, 822 A.2d 399 (2003) citing Bailey v. Medical Examining Board for State Employee Disability Retirement, 75 Conn.App. 215, 219, 805 A.2d 281 (2003).
Under these circumstances and on the procedural posture of the present case, the court must assume as true the factual allegations asserted in the application. See Duguay v. Hopkins, 191 Conn. 222, 227, 464 A.2d 45 (1983) (a motion to dismiss not seeking an introduction of facts admits all well pleaded facts). The plaintiff concedes in its brief that its claim under § 52-418(a)(4) is untimely and cannot be considered by the court because it was not filed within the requisite 30-day time period. There is little dispute that with respect to the specific types of challenges to awards enumerated in § 52-418 of the arbitration statute, a motion or application to vacate an arbitration award must be filed in court within the thirty-day time limit, or the trial court does not have subject matter jurisdiction over the motion. Middlesex Ins. Co. v. Castellano, 225 Conn. 339, 344, 623 A.2d 55 (1993); Wu v. Chang, 264 Conn. 313, 822 A.2d 1197 (2003). Thus, the only remaining issue presented here is whether a party may bring an independent action that an arbitration decision should not be confirmed because the award violates public policy, when this claim could have been, but was not asserted as part of a timely motion to vacate or to correct the award under §§ 52-418 et seq.
II Discussion
There is no appellate authority directly on point, however the court is persuaded by the well-reasoned decision of the trial court (Stevens, J.), in Shrader v. Zeldes, Needle and Cooper, 45 Conn.Sup. 130, 702 A.2d 1214 (1997). The precise issue presented in that case was whether a party may assert a special defense or counterclaim that an arbitration decision should not be confirmed because the award violates public policy, when this claim was not asserted as part of a timely motion to vacate or to correct the award under § 52-420(b).
One trial court has ruled the opposite way. See Bahre v. Hunter, Superior Court, judicial district of Litchfield at Litchfield, Docket No. CV 9900749420 (August 23, 1999, Pickett, J.) ( 25 Conn. L. Rptr. 387).
The plaintiff's response to the defendant's motion to dismiss for failure to comply with the statutory and Practice Book provisions regarding motion to vacate arbitration awards is essentially the argument asserted in Shrader, that public policy violations are not governed by the arbitration statute, but are based on common law, and therefore the court has plenary power independent of the arbitration statutes, to review arbitration awards that violate a clear public policy. See generally Garrity v. McCaskey, 223 Conn. 1, 612 A.2d 712 (1992).
Our Supreme Court has expressly recognized three grounds for vacating an arbitration award: "(1) the award rules on the constitutionality of a statute . . . (2) the award violates clear public policy . . . or (3) the award contravenes one or more of the statutory proscriptions of § 52-418." (Citations omitted.) Garrity v. McCaskey, supra, 223 Conn. 6. "[T]he public policy exception to arbitral authority should be narrowly construed and [a] court's refusal to enforce an arbitrator's [award] is limited to situations where the [award] would violate some explicit public policy that is well defined and dominant, and is to be ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interests." (Internal quotation marks omitted.) Watertown Police Union Local 541 v. Watertown, 210 Conn. 333, 340, 555 A.2d 406 (1989). As a matter of judicial prudence and in the exercise of the court's inherent judicial discretion, the court should not confirm an arbitration decision that violates well-established public policy. An arbitration decision that violates public policy is not just erroneous; such an award exceeds the powers of an arbitrator and is "void and unenforceable." International Brotherhood of Police Officers v. Windsor, 40 Conn.Sup. 145, CT Page 7726 148, 483 A.2d 626 (1984). Even if the decision conforms to the submission, a court must vacate the award if it is repugnant to the public policy of this state. Watertown Police Union Local 541 v. Watertown, supra, 210 Conn. 339; State v. Council 4, AFSCME, 27 Conn.App. 635, 639-40, 608 A.2d 718 (1992). "Just as parties cannot expect a court to enforce a contract between them that is illegal or otherwise contrary to public policy, they cannot expect any arbitration award which condones illegal payment or contravenes public policy to receive judicial endorsement . . . In such a case, the reviewing court is not concerned with the correctness of the arbitrator's decision, but with the lawfulness of enforcing the award." (Citations omitted.) State v. R.A. Civitello, Co., 6 Conn.App. 438, 442, 505 A.2d 1277, cert. denied, 199 Conn. 810, 508 A.2d 770 (1986).
Consequently, the law is clear that the public policy exception is a separate, common-law basis for contesting an arbitration award independent of the provisions of the arbitration statutes. The court's power to vacate an arbitration award on this common-law ground exists independent of any specific statutory authority. "The power to strike an arbitration ruling as violative of public policy [exists] apart from any particular grant of authority from the legislative branch." Garrity, supra, 223 Conn. 6; See also Wu v. Chang, supra, 264 Conn. 311, fn.8. Garrity, however, does not address exactly when or how this public policy exception may be asserted.
After careful consideration, this court agrees with the trial court opinion in Shrader that courts are required to review claims that an arbitration decision should not be confirmed because the award violates public policy even when these claims are not asserted within the thirty-day time limitation period or other procedural requirements of §§ 52-418 and 52-420(b).
For the foregoing reasons, the motion to dismiss is granted as to the plaintiff's claim under § 52-418(a)(4) but denied as to the claim that the award violates public policy.
The court at this time expresses no opinion on the merits of the public policy claim.