Opinion
No. CV08-4029843S
July 14, 2008
MEMORANDUM OF DECISION RE MOTION TO DISMISS (#102)
On March 24, 2008, the defendant filed a motion to dismiss the plaintiff's administrative appeal on the ground that this court lacks subject matter jurisdiction. The defendant argues that under Connecticut laws, complainants have no right to appeal a statewide grievance committee dismissal. In response, the plaintiff, a pro se litigant, argues that she should be afforded a right to appeal the defendant's dismissal of her claims. She also argues that the authority cited by the defendant is not binding on this court. For reasons more fully set forth herein, this court grants the defendant's motion.
In November 2006, the plaintiff, Anne Bradley, initiated a grievance complaint against her attorney, Jerald S. Barber, alleging that he violated the rules of professional conduct. The plaintiff alleged, inter alia, that Attorney Barber failed to return her file and refund a retainer. On February 12, 2007, the defendant, acting pursuant to § 2-32 of the Practice Book and rule 1 of the grievance panel rules of procedure, informed the plaintiff that it dismissed her complaint on the ground that no probable cause of misconduct existed.
The plaintiff filed the instant matter appealing the decision of the defendant. Although the plaintiff makes many claims, the precise legal theories on which she advances her arguments are not clearly or concisely articulated. It appears that the plaintiff brings this appeal pursuant to § 2-38 of the Practice Book, § 4-183 of the Uniform Administrative Procedure Act (UAPA) and the due process clauses, presumably of both the state and federal constitutions.
"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a claim that should be heard by the court . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Beecher v Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, CT Page 11604 918 A.2d 880 (2007). "When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light . . . In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007). Finally, "[p]ursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction." St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003).
Generally, "[a]ppeals to courts from administrative agencies exist only under statutory authority." (Internal quotation marks omitted.) Circle Lanes of Fairfield, Inc. v. Fay, 195 Conn. 534, 542, 489 A.2d 363 (1985). The rules of practice, which supply the statutory scheme directing an attorney disciplinary proceeding, provide in relevant part: "A respondent may appeal to the superior court a decision by the statewide grievance committee or reviewing committee reprimanding the respondent . . ." (Emphasis added.) Practice Book § 2-38. Chapter two of the Practice Book speaks only of a respondent's right to appeal a statewide grievance committee decision. No such equivalent right is explicitly granted to the complainant. Therefore, if the plaintiff possesses a right to appeal a statewide grievance committee dismissal, that right must derive from an authority other than the Practice Book.
The plaintiff claims that the UAPA authorizes her to bring this appeal. General Statutes § 4-183(a) of that Act provides, in relevant part, that: "A person who has exhausted all administrative remedies available within the agency and who is aggrieved by the final decision may appeal to the Superior Court as provided in this section." The Connecticut Supreme Court, however, has stated that "the SGC [Statewide Grievance Committee] is an arm of the court, and is not a body in which the legislature has reposed general powers of administration of a particular state program with which it has been given statutory authority to act for the state in the implementation of that program. We therefore hold that the SGC is excluded under the definition of agency set forth in § 4-166(1)." (Internal quotation marks omitted.) Sobocinski v. Statewide Grievance Committee, 215 Conn. 517, 526, 576 A.2d 532 (1990). The Sobocinski holding, when read in conjunction with the language of the rules of practice, necessitates the conclusion that "there is no appeal mechanism available to the complainant from such a dismissal." Connecticut Lawyer's Deskbook (P. Costas ed., 2000) p. II-9.
This court observes that even if UAPA applied in this case, this CT Page 11605 appeal would be dismissed as untimely. The grievance panel dismissed the plaintiff's complaint on February 12, 2007. The plaintiff filed this matter on February 6, 2008. The UAPA requires an appeal to the Superior Court to be filed "within forty-five days after mailing of the final decision . . ." General Statutes § 4-183(c). "[B]ecause the right to take an administrative appeal depends upon statutory authority . . . noncompliance with the statutory requirements of the Uniform Administrative Procedure Act implicates subject matter jurisdiction and renders a nonconforming appeal subject to dismissal." (Internal quotation marks omitted.) Tolly v Department of Human Resources, 225 Conn. 13, 27, 621 A.2d 719 (1993).
Although a complainant, under certain circumstances may have an equitable right of review, such is not necessarily the case when a complainant is seeking judicial review of the Statewide Grievance Committee's dismissal of her complaint. See, Pinsky v. Statewide Grievance Committee, 216 Conn. 228, 234 n. 4, 578 A.2d 1075 (1990) (Court observed that a plaintiff may not be able to use equitable arguments to obtain judicial review of "the decision of the [Grievance Committee] dismissing her complaint against her former attorney . . . [a]s the complainant, her interest in that decision was not equivalent to the right of an attorney . . . in preserving his professional reputation"). While it is true that the judiciary has the powers necessary to grant review of acts violating constitutional rights under article fifth of the Connecticut constitution, Courts may only use these powers if "egregious and otherwise irreparable violations of state and federal constitutional guarantees are being or have been committed by such proceedings." (Internal quotation marks omitted.) Circle Lanes of Fairfield, Inc. v. Fay, supra, 196 Conn. 542-43.
In this instant case, none of the alleged facts suggest that such inquiry is necessary or required. For these reasons, the court grants the defendant's motion to dismiss.