Opinion
No. CV05-4015851
March 7, 2006
MEMORANDUM OF DECISION ON MOTION TO DISMISS AND/OR STRIKE
The applicant, Local 391, American Federation of State, County, Municipal Employees, AFL-CIO, brought this action seeking an order, pursuant to Conn. Gen. Stat. § 52-412(c), to allow the taking of depositions of Department of Correction (DOC) employees in connection with labor arbitration proceedings brought on behalf of three state employees. The applicant and the defendant are parties to a collective bargaining agreement (CBA), which includes procedures for submitting grievances to binding arbitration to the State Board of Mediation and Arbitration (SBMA). The application was filed on behalf of three former employees of the DOC whose employment was terminated in May of 2004.
The defendant has filed a motion to dismiss and/or strike the application on the ground that the court lacks subject matter jurisdiction over the application. Specifically, it argues that § 52-412(c) is part of a statutory scheme addressing arbitration generally, that it is separate and distinct from the statutory scheme of the State Employees Relations Act (SERA), to which the parties are subject, and which does not provide for pre-award court-ordered evidentiary depositions. It also argues that the state has not given an express waiver of sovereign immunity or consent to suit required to subject it to this civil action. The defendant further argues that the SBMA rules do not provide, for pre-award judicial intervention to order evidentiary depositions, and that public policy discourages judicial interference in arbitration proceedings. Finally, the defendant argues that, even if § 52-412(c) is found to apply, that statute allows only evidentiary depositions, and that the application fails to establish the need for such depositions.
The applicant contends that courts have held that General Statutes §§ 52-408 through 52-424, governing arbitration generally, may be applied to labor disputes if the statutes are harmonious with collective bargaining statutes and where they promote and assist the arbitration process. The applicant farther argues that because the application is not a claim against the state, neither an express waiver of sovereign immunity nor consent to suit is required. Finally, it argues that the taking of depositions would aid the arbitration process and is not prohibited by law.
The applicant seeks an order directing the taking of depositions pursuant to General Statutes § 52-412(c), which states that "[a]ny party to a written agreement for arbitration may make application to the Superior Court, or, when the court is not in session, to a judge thereof, having jurisdiction as provided in subsection (b), for an order directing the taking of depositions, in the manner and for the reasons prescribed by law for taking depositions to be used in a civil action, for use as evidence in an arbitration."
General Statutes § 52-412(b) states that "[o]n application of an arbitrator, umpire or other person, the superior court for the judicial district in which one of the parties resides or, in the case of land, for the judicial district in which the land is situated or, when the court is not in session, any judge thereof, shall order necessary process to issue to compel compliance with subpoenas in an arbitration matter in the manner provided by law concerning subpoenas in a civil action."
The defendant argues that the issue of the applicability of General Statutes § 52-412(c) to SBMA arbitration proceedings is controlled by Milford v. Local 1566, AFSCME, 200 Conn. 91 (1986). That case involved an application to the court for an order vacating an arbitration award made by the SBMA on the ground that the SBMA members had not taken an oath that the applicant claimed was required by General Statutes § 52-414(d). Id., 92. The court held that § 52-414(d) did not apply to arbitrators who take an oath upon assuming office. Id., 102. The court noted that the arbitrators were already sworn to uphold the duties of their office pursuant to General Statutes § 4-1 and article 11th § 1 of the constitution of Connecticut. Id. 100. The court disagreed with the applicant's contention that the oath requirements in General Statutes § 52-414(d) were consistent with the other oath requirements to which the SBMA was subjected. Here, the applicant requests a court order for evidentiary depositions, which are neither provided for nor expressly prohibited by the arbitration agreement. It appears to this court that the Milford case, insofar as it addresses the applicability of two statutory provisions that expressly address oath-taking, is distinguishable from this case, and that the defendant's reliance on it is misplaced.
The court is aware of no decisions which apply § 52-412(c) to a state labor dispute under SERA. In AFSCME Council 4, Local 2656 v. Stamford, Docket No. CV 90 0113730 (Judicial District of Stamford-Norwalk at Stamford, February 28, 1990) (Mottolese, J.) ( 3 Conn. L. Rptr. 287), however, the statute was applied to arbitration under the Municipal Employee Relations Act (MERA). MERA appears not to contain provisions providing for the taking of depositions. "While the agreement for the arbitration of a dispute may contain special provisions governing the conduct of the arbitration proceedings, in the absence of such special provisions the arbitration proceedings are governed by the applicable provision of our general arbitration statutes." Marsala v. Valve Corporation of America, 157 Conn. 362, 365 (1969). The parties do not dispute that the collective bargaining agreement in this case contains no provisions for the taking of evidentiary depositions. This court, therefore, applies the provisions of § 52-412(c) to the agreement.
The defendant moves to dismiss the application on the ground that the state has not expressly waived its sovereign immunity or consented to suit. The applicant contends that the application is not a complaint for relief subjecting the state to suit, and that the doctrine of sovereign immunity is therefore inapplicable. The defendant relies on two Superior Court cases involving pre-complaint applications for discovery. In Dempsey v. Haggerty, Docket No. 940367006 (Judicial District of New Haven, May 11, 1995) (Hodgson, J.) ( 14 Conn. L. Rptr. 309), the applicant filed a bill of discovery pursuant to General Statutes § 52-156(a), seeking to depose the superintendent of a facility where the applicant was allegedly injured. In addition to the deposition, the application sought orders directing the defendant to preserve the evidence while the application was being considered, and compelling the defendant to allow photographs, disassembly and inspection of the wiring at issue. Id.
In granting the motion to dismiss the application as to the latter two requests, the court noted that those requests amounted to an application for injunctive relief, thus subjecting the defendant to the protections of sovereign immunity. Id., citing to Rogan v. Board of Trustees, 178 Conn. 579, 585 (1979) ("[U]nless the state consents to suit, an action for injunctive relief will not lie against the state"). In granting the motion to dismiss as to the request to depose the defendant, the court noted that there was a specific administrative remedy available to the applicant in the procedures set forth in the Freedom of Information Act (FOIA), General Statutes § 1-18a et seq. It further noted that the applicant did not identify any reason why those procedures were inadequate or inapplicable, thus necessitating a resort to General Statutes § 52-156(a).
In Stratton v. State, Docket No. CV 99 090648 (Judicial District of Middlesex, March 20, 2000) (Gordon, J.), the applicant sought discovery related to his former employment with the state for what he claimed was a potential cause of action against the state. As in Dempsey, supra, the court found that the applicant already had other adequate means of enforcing discovery, namely FOIA, and that the applicant had failed to state why those procedures were inadequate or inapplicable. Id.
The defendant's reliance on Dempsey and Stratton is misplaced. Both cases involve pre-complaint discovery requests by applicants who claimed they had potential causes of action against the state or its employees. Here, the request for discovery is pursuant to an arbitration in progress, and is not being sought in connection with a potential cause of action. The parties in this case do not dispute that there is no provision in the CBA for pre-award evidentiary depositions. The Connecticut Supreme Court has held that, "where the statutes provide a specific administrative method of resolution of a request for relief involving the State, such an administrative scheme should be followed, and claims invoking other procedures should be dismissed where the issue is not of constitutional dimensions." Dempsey v. Haggertv, supra, citing to Owner-Operators Independent Drivers Association of America v. State, 209 Conn. 679, 686 (1989). In this case, because there is no provision for evidentiary depositions in SERA, the applicant has properly invoked General Statutes § 52-412(c), which may provide for such depositions pursuant to an arbitration agreement. Finally, the application does not amount to a request for injunctive relief, as was found in Dempsey v. Haggerty, supra.
The defendant argues that, even if General Statutes § 52-412(c) were to apply, the application should be denied because the statute does not authorize discovery depositions, but allows only evidentiary depositions. The defendant's argument on this point goes to the merits of the application itself, and it would be premature for the court to consider this argument on a consideration of a motion to dismiss the application for lack of subject matter jurisdiction.
The motion to dismiss is therefore denied.