Opinion
No. CV 10-6011528-S
October 28, 2010
MEMORANDUM OF DECISION ON MOTION TO DISMISS #105
The plaintiff, the administrator of the estate of Donna Bochicchio, has brought this bill of discovery against the Hon. Barbara Quinn and the Hon. Julia Aurigemma, judges of the Superior Court, seeking to take their deposition testimony. The plaintiff seeks the defendants' knowledge of facts pertaining to a claim against the state, which is pending in the office of the claims commissioner, entitled In re Bochicchio, File #20839. The claim arises out of a tragic incident where Donna Bochicchio was shot and killed by her estranged husband, Michael Bochicchio, in a public parking lot outside the Middletown Courthouse. The claims commissioner has authorized written interrogatories to the judges concerning matters, regarding the claim, that they were involved in and have knowledge of. The defendants have moved to dismiss this action for bill of discovery on the grounds of sovereign immunity.
"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." (Internal quotation marks omitted.) Bacon Construction Co. v. Dept. of Public Works, 294 Conn. 695, 706, 987 A.2d 348 (2010). "[T]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss." Amore v. Frankel, 228 Conn. 358, 364, 636 A.2d 786 (1994). "The doctrine of sovereign immunity is a rule of common law that operates as a strong presumption in favor of the state's immunity from liability or suit." Envirotest Systems Corp. v. Commissioner of Motor Vehicles, 293 Conn. 382, 387-88, 978 A.2d 49 (2009). "[B]ecause the state can act only through its officers and agents, a suit against a state officer concerning a matter in which the officer represents the state is, in effect, against the state." Fetterman v. University of Connecticut, CT Page 20932 192 Conn. 539, 550-51, 473 A.2d 1176 (1984).
"Exceptions to this doctrine are few and narrowly construed under our jurisprudence." C.R. Klewin Northeast, LLC. v. Fleming, 284 Conn. 250, 258, 932 A.2d 1053 (2007). In order to "overcome the presumption of sovereign immunity [a litigant] must show that (1) the legislature, either expressly or by force of a necessary implication, statutorily waived the state's sovereign immunity . . . or (2) in an action for declaratory or injunctive relief, the state officer or officers against whom such relief is sought acted in excess of statutory authority, or pursuant to an unconstitutional statute." DaimlerChrysler Corp. v. Law, 284 Conn. 701, 711-12, 937 A.2d 675 (2007).
The plaintiff does not claim that this case comes under either of the enumerated exceptions. Instead, the plaintiff argues that the relief requested seeks only discovery, and not any damages or affirmative equitable relief that could adversely affect the state. The plaintiff relies on language in the case of Gold v. Rowland, 296 Conn. 186, 215, 994 A.2d 106 (2010), wherein the court stated: "We agree with the general principle that where the state will be unaffected by [a judgment in favor of the plaintiff], its consent to suit and waiver of sovereign immunity seems unnecessary." (Internal quotation marks omitted.). The court does not agree that the state is unaffected by this bill of discovery action.
The court agrees with the defendants that this action affects the state in three significant ways. First, the depositions sought are in connection with the plaintiff's pending claims commission proceedings, in which it seeks the right to sue the state for substantial damages. Obviously, information obtained in the depositions potentially may be used against the state in a possible future action. To conclude that the state is not affected by the requested discovery proceedings would be to blink at reality.
Second, the judges' time consumed in preparing for and giving depositions would diminish their availability to fulfill their judicial duties. The court notes that Judge Quinn currently serves as the chief court administrator and is responsible for the efficient operation of the judicial branch. Furthermore, the depositions would contravene the principle that "the calling of judges of the Superior Court as witnesses should be avoided whenever it is reasonably possible to do so." Woodward v. Waterbury, 113 Conn. 457, 465, 155 A. 825 (1931). It is acknowledged that the foregoing considerations may not be relevant if a deposition of the defendants is ordered by the claims commissioner in the future; however, that possibility does not prevent the court from determining that, in this independent action for discovery, the state is affected.
Third, this independent action for a bill of discovery affects the state in that it undermines the legislatively established method for determining claims against the state. General Statutes § 4-141 et seq. sets forth the manner in which claims against the state are resolved. General Statutes § 4-151(c) specifically empowers the claims commissioner to "cause depositions to be taken." The plaintiff has alleged in its complaint that the claims commissioner denied its request to take the depositions of the defendant judges, but did give the plaintiff the opportunity to pose to them written interrogatories. It is reasonable to infer that the plaintiff was dissatisfied with that ruling, and brought this action to seek the relief it was denied. This conduct is tantamount to an appeal to this court of a decision of the claim commissioner. This is not permitted since the Superior Court "[lacks] . . . jurisdiction to hear appeals from the claims commissioner." Circle Lanes of Fairfield, Inc. v. Fay, 195 Conn. 534, 541, 489 A.2d 363 (1985). Under these circumstances, this action has a substantial effect upon the state because of the potential for disruption of the procedure established by the legislature to resolve claims against the state.
Despite the plaintiff's claim to the contrary, this case does not present an issue of first impression. In the case of Dempsey v. Haggerty, Superior Court, judicial district of New Haven, Docket No. CV 940367006 (May 11, 1995, Hodgson, J.) ( 14 Conn. L. Rptr. 309), the court considered the issue of whether pre-complaint discovery authorized by General Statutes § 52-156a, which provides for a statutory bill of discovery, may be pursued against an employee of the state of Connecticut. In that case the plaintiff sought, in part, to depose a state employee in connection with a potential suit against a third party. The state filed a motion to dismiss, asserting the doctrine of sovereign immunity. The court granted the motion to dismiss and stated: "The Connecticut Supreme Court has, however, held that where the statutes provide a specific administrative method of resolution of a request for relief involving the [s]tate, such an administrative scheme should be followed, and claims invoking other procedures should be dismissed where the issue is not of constitutional dimensions." Id., 310. Judge Hodgson relied on the case of Owner-Operators Independent Drivers Assn. of America v. State, 209 Conn. 679, 681, 553 A.2d 1104 (1989), in which the court affirmed the granting of a motion to dismiss an action on the basis of sovereign immunity where an established procedure existed to obtain relief from the state in the form of a tax refund.
In Dempsey v. Haggerty, supra, 14 Conn. L. Rptr. 310, the court found that the plaintiff had a specific method, the procedures set forth in the Freedom of Information Act, for obtaining the information sought from the state. In this case, the claims commissioner proceedings, with the commissioner's attendant authority for discovery, provide a specific administrative method for the plaintiff to obtain the information it seeks.
The plaintiff relies on dicta contained in a footnote in the case of Kelly v. Albertsen, 114 Conn.App. 600, 608 n. 5, 970 A.2d 787 (2009), where the court indicated that the plaintiff, in his action against the defendant, who was also a state employee, could have brought a bill of discovery to discover facts relevant to his jurisdictional burden. The plaintiff's reliance on Kelly v. Albertsen, supra, 114 Conn.App. 608, is misplaced because that case concerned the actions of a state employee in his individual capacity. Because the state official was not sued in his official capacity, sovereign immunity was not implicated.
The plaintiff reminds the court that, in a decision as to whether a court has subject matter jurisdiction, "every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) In re Judicial Inquiry No. 2005-02, 293 Conn. 247, 254, 977 A.2d 166 (2009). In this case, the presumption favoring jurisdiction yields to the strong presumption in favor of the state's immunity from suit. Envirotest Systems Corp. v. Commissioner of Motor Vehicles, supra, 293 Conn. 387-88.
For the foregoing reasons, the motion to dismiss is granted.