Opinion
No. CV 07 4026234 S
June 19, 2008
MEMORANDUM OF DECISION RE MOTION TO REARGUE, RECONSIDER, AND ARTICULATE #112
The court is presently urged to reconsider the defendant's previous motions to strike the entirety of the plaintiff's civil complaint on the ground that the mandatory sex offender registration requirements set forth in General Statute § 54-252 are constitutionally permissible as retroactively applied in this case, and that the plaintiff's complaint is, therefore, legally insufficient. Before traversing this legal landscape again, however, the court is obliged to consider whether it has jurisdiction to hear this suit in the first instance. For the reasons further set-forth below, the court concludes that the defendant enjoys sovereign immunity, and the case is, accordingly, dismissed for want of subject matter jurisdiction.
The defendant filed the identical motion to strike on July 18, 2007 (#102) and August 8, 2007 (#110).
Although neither party has raised the issue of sovereign immunity, the court does so sua sponte because that concept implicates this court's subject matter jurisdiction and, therefore, must be addressed. See Webster Rank v. Zak, 259 Conn. 766, 774, 792 A.2d 66 (2002) ("the question of subject matter jurisdiction, because it addresses the basic competency of the court, can be raised by any of the parties, or by the court sua sponte, at any time"); see also Daly v. DelPonte, 27 Conn.App. 495, 608 A.2d 93, cert. denied, 223 Conn. 903, 610 A.2d 177 (1992); Planning Zoning Commission v. Gaal, 9 Conn.App. 538, 520 A.2d 246, cert. denied, 203 Conn. 803, 522 A.2d 294 (1987).
FACTS
The pro se inmate plaintiff, Clifton Powell, brought suit against the defendant, the office of the state's attorney, for its alleged violation of his plea bargain agreement, as well as for its allegedly unlawful prosecution of him for failure to comply with the mandatory sex offender registration requirements set forth in General Statute § 54-252. Specifically, the plaintiff argues that: (1) he is not subject to the registration requirements encapsulated in § 54-252 because that statute had not been enacted at the time of and was not a condition of, his plea agreement; (2) the sentencing court did not apprise him of the potential that he could become subject to such requirements; (3) he was falsely arrested for failing to comply with the mandatory sex offender registration requirements because they were inapplicable to him; and (4) the office of the state's attorney was negligent in its attorney training. To remedy these alleged malefactions, the plaintiff seeks: (1) to have the underlying conviction and all subsequent convictions related to that conviction vacated; (2) his immediate release from prison ordered; and (3) money damages from the State of Connecticut awarded.
General Statute § 54-252 states in relevant part: "(a) Any person who has been convicted . . . of a sexually violent offense, and (1) is released into the community on or after October 1, 1988, and prior to October 1, 1998, and resides in this state, shall, on October 1, 1998, or within three days of residing in this state, whichever is later, or (2) is released into the community on or after October 1, 1998, shall, within three days following such release or, if such person is in the custody of the Commissioner of Correction, at such time prior to release as the commissioner shall direct, register such person's name, identifying factors, criminal history record . . . and residence address with the Commissioner of Public Safety on such forms and in such locations as said commissioner shall direct, and shall maintain such registration for life."
Although the plaintiff does not fashion his complaint as a formal petition for a writ of habeas corpus, the court nevertheless pauses to consider briefly the implications of his prayer for relief, which explicitly requests his release from prison. To the extent that the plaintiff's complaint can be read as a habeas corpus petition, it does not conform with our rules of practice because it fails to state whether any previous petitions for a writ of habeas corpus challenging this same confinement have previously been taken and does not indicate whether the legal grounds upon which this petition is sought were previously raised in a direct appeal of his criminal charge. See Practice Book § 23-22 ("[a] petition for a writ of habeas corpus shall be under oath and shall state . . . any previous petitions for the writ of habeas corpus challenging the same confinement . . . and . . . whether the legal grounds upon which the petition is based were previously asserted at the criminal trial, on direct appeal or in any previous petition").
Notwithstanding these technical deficiencies, however, the latent petition for habeas presented in this case would still be dismissed because it "fails to state a claim upon which habeas corpus relief can be granted." Practice Book § 23-29(2). For the reasons more fully elucidated below, the plaintiff has not properly alleged that the office of the state's attorney violated his plea agreement or that he was unjustly incarcerated because his obligation to comply with the sex offender registration requirements was constitutional and did not materially alter the terms or conditions of his previous sentence. Accordingly, to the extent that the plaintiff's complaint can be read as a habeas petition, it is dismissed sua sponte because it fails to state a valid claim for habeas relief and "it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Pamela B. v. Ment, 244 Conn. 296, 308-09, 709 A.2d 1089 (1998); see also Practice Book § 23-29(2) ("[t]he judicial authority may, at any time, upon its own motion or upon motion of the respondent, dismiss the petition, or any count thereof, if it determines that . . . the petition, or a count thereof, fails to state a claim upon which habeas corpus relief can be granted"); Alonso v. Warden, Superior Court, judicial district of Tolland at Rockville, Docket No. CV 02 3784 (September 16, 2003, Kaplan, J.) (habeas petition dismissed because due process claim legally insufficient).
In view of the plaintiff's pro se status and the confusing allegations contained in his complaint, it is appropriate at this time to provide some additional detail concerning the factual allegations giving rise to this action. In 1989, the plaintiff was sentenced to four years for sexual assault in the first degree, execution suspended, with five years probation, with special conditions of probation in addition to the standard conditions. In April of 1993, the plaintiff was convicted of possession of narcotics and was found to have violated his probation, which resulted in a four-year sentence for his narcotics conviction and the reimposition of his remaining sentence on the violation of probation. Subsequently, the plaintiff was charged in March 2007 with failure to register as a sex offender. It is the plaintiff's contention that because this registration requirement was not a condition of his initial plea agreement for the 1989 sex assault conviction, each of these convictions should be vacated. To this end, his argument appears to be that because the court, according to the plaintiff's understanding of the law, is obligated to vacate the 1989 conviction due to the alleged violation of the plea agreement that was occasioned by the office of the state's attorney subsequently prosecuting him for failing to register, his subsequent conviction for violating his probation must also be vacated. He further claims that his conviction for possession of narcotics and for violating the terms of his probation were heard during the same court proceeding, and that, consequently, they constitute a single conviction; accordingly, the plaintiff argues that the narcotics conviction must be vacated together with the conviction for violating his probation.
Where a layman appears pro se, the court follows a liberal policy and carefully considers a pro se party's claims as far as they are fairly presented upon the record to ensure that no injustice has been done to him under the law. See Goldstein v. Fischer, 200 Conn. 197, 198, 510 A.2d 184 (1986). Nevertheless, while the plaintiff is afforded this latitude, the court is equally cognizant that "the right of self-representation provides no attendant license not to comply with relevant rules of procedure and substantive law." New Haven v. Bonner, 272 Conn. 489, 498, 863 A.2d 680 (2004); see also Rodriguez v. Mallory Battery Co., 188 Conn. 145, 149 n. 8, 448 A.2d 829 (1982) (notwithstanding leniency accorded pro se litigants, "we cannot, and will not, entirely disregard the established rules of procedure").
It is unclear from the records as to whether the sentences for possession of narcotics and for violation of probation were to be served concurrently or consecutively.
The defendant filed a motion to strike the entirety of the plaintiff's complaint on July 18, 2007, and filed an identical motion to strike on August 8, 2007; the plaintiff filed objections to both motions to strike. Although both motions were supported by a memorandum of law, they were nevertheless denied by this court. The defendant filed its motion to reargue, reconsider, and articulate on September 20, 2007, which was supported by a memorandum of law. An objection by the plaintiff to this motion is not recorded as having been filed, though argument by both parties was heard at short calendar on March 24, 2008.
The plaintiff's complaint was served on the defendant on May 31, 2007, was filed with the court on June 8, 2007, and was given a return date of July 10, 2007. The plaintiff filed a motion for leave to amend his complaint together with an amended complaint on August 15, 2007, which was not acted on by the court nor objected to by the defendant. While an unobjectionable amended complaint would ordinarily become operative under Practice Book § 10-60(a)(3), the plaintiff in this case used his amended complaint to add new defendants and failed to serve the new defendants with a complaint, which contravenes our rules of practice. See Palazzo v. Delrose, 91 Conn.App. 222, 226, 880 A.2d 169, cert. denied, 276 Conn. 912, 886 A.2d 426 (2005) ("if the amendment is deemed to be a substitution or entire change of a party, it will not be permitted"); see also Practice Book § 9-22 (motion to cite in new parties must comply with Practice Book § 11-1, which requires proof of service of process on all parties). Moreover, the plaintiff filed an "Acknowledgment Seeking Disextended [sic] Relief," which purports to reclaim his original complaint as the operative complaint. Accordingly, the court will treat the original complaint, naming the office of the state's attorney as the sole defendant, as the operative complaint for purposes of this motion.
The court notes that both motions to strike failed to state the reason for the alleged legal insufficiency of the plaintiff's complaint in the motion itself. "Simply stating that all of the counts are `legally insufficient' and that they `fail to allege any facts that would indicate [that the] defendant is liable to [the] plaintiffs' cannot be considered compliance with Practice Book § 10-41.'" Stuart v. Freiberg, 102 Conn.App. 857, 862, 927 A.2d 343 (2007). Indeed, Practice Book § 10-41 "clearly places the burden on the party filing the motion to strike to state the grounds of the claimed insufficiency in the text of the motion. As correctly noted by the Superior Court in Bucon, Inc. v. ARC Icesports Danbury, Inc., Superior Court, judicial district of Waterbury, Docket No. CV-99-0160473-S (February 8, 2001), if that procedure is not followed, it puts the party opposing the motion and the court to the task of trying to locate in the accompanying memorandum of law the various claims of insufficiency that are being made. In poorly organized briefs, such a hunt for grounds presents the hazard of missing claims or responding to observations that the movant does not actually assert as grounds." (Internal quotation marks omitted.) Stuart v. Freiberg, supra, 102 Conn.App. 862 n. 2.
DISCUSSION
While this matter comes before the court by way of a motion to strike, the court is nevertheless first obliged to consider whether it has jurisdiction to hear this suit or whether the plaintiff is foreclosed from suing the office of the state's attorney by the principles of sovereign immunity. Accordingly, the court begins by observing some well settled principles regarding subject matter jurisdiction and sovereign immunity. "Jurisdiction of the subject-matter is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong . . . A court has subject matter jurisdiction if it has the authority to adjudicate a particular type of legal controversy . . . [O]nce the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented . . . and the court must fully resolve it before proceeding further with the case." Milford Power Co., LLC v. Alstom Power, Inc., 263 Conn. 616, 624-25, 822 A.2d 196 (2003). Finally, because "sovereign immunity implicates subject matter jurisdiction"; Cox v. Aiken, 278 Conn. 204, 211, 897 A.2d 71 (2006); it is appropriately considered by the court at this time.
With these principles in mind, the court next considers the contours of our sovereign immunity jurisprudence. It is axiomatic "that the state cannot be sued without its consent." C.R. Klewin Northeast, LLC v. Fleming, 284 Conn. 250, 258, 932 A.2d 1053 (2007); see also Miller v. Egan, 265 Conn. 301, 313, 828 A.2d 549 (2003); Horton v. Meskill, 172 Conn. 615, 623, 376 A.2d 359 (1977). Moreover, in addition to suits against the state as a discrete entity, the courts have also recognized "that because 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." (Internal quotation marks omitted.) C.R. Klewin Northeast, LLC v. Fleming, supra, 284 Conn. 258. "This rule had its origin in the ancient common law, predicated on the principle that the king, being the fountainhead of justice, could not be sued in his own courts . . . While the principle of sovereign immunity is deeply rooted in our common law, it has, nevertheless, been modified and adapted to the American concept of constitutional government where the source of governmental power and authority is not vested by divine right in a ruler but rests in the people themselves who have adopted constitutions creating governments with defined and limited powers and courts to interpret these basic laws." (Citation omitted; internal quotation marks omitted.) Horton v. Meskill, supra, 172 Conn. 623. Applying this rationale to our constitutional form of government, Justice Holmes famously explained: "A sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends." (Internal quotation marks omitted.) Miller v. Egan, supra, 265 Conn. 314.
Nevertheless, the bar presented by this rule of law and its principled underpinnings is not impenetrable. Our Supreme Court has held that a plaintiff seeking to surmount the doctrine of sovereign immunity can do so by demonstrating the applicability of one of three exceptions. "These are: (1) when the legislature, either expressly or by force of a necessary implication, statutorily waives the state's sovereign immunity; Martinez v. Dept of Public Safety, 263 Conn. 74, 85-86, 818 A.2d 758 (2003); (2) when an action seeks declaratory or injunctive relief on the basis of a substantial claim that the state or one of its officers has violated the plaintiff's constitutional rights; Doe v. Heintz, 204 Conn. 17, 31, 526 A.2d 1318 (1987); and (3) when an action seeks declaratory or injunctive relief on the basis of a substantial allegation of wrongful conduct to promote an illegal purpose in excess of the officer's statutory authority. Antinerella v. Rioux, 229 Conn. 479, 497, 642 A.2d 699 (1994), overruled in part, Miller v. Egan, [ supra, 265 Conn. 325]." Tuchman v. State, 89 Conn.App. 745, 753, 878 A.2d 384, cert. denied, 275 Conn. 920, 883 A.2d 1252 (2005). Thus, state-law claims seeking to overcome sovereign immunity are first categorized by the type of relief sought and are then analyzed according to the exceptions available for that type of relief. See, e.g., Barde v. Board of Trustees, 207 Conn. 59, 60-61, 539 A.2d 1000 (1988) (treating plaintiff's claims for injunctive relief and money damages separately); Fetterman v. University of Connecticut, 192 Conn. 539, 553, 473 A.2d 1176 (1984) (treating claims for monetary damages and declaratory relief separately).
Our Supreme Court has explained the significance of the remedy distinction by noting: "In the absence of legislative authority . . . We have declined to permit any monetary award against the state or its officials . . . We have excepted declaratory and injunctive relief from the sovereign immunity doctrine on the ground that a court may fashion these remedies in such a manner as to minimize disruption of government and to afford an opportunity for voluntary compliance with the judgment." (Internal quotation mark omitted.) Miller v. Egan, supra, 265 Conn. 316-17.
Turning first to the plaintiff's prayer for monetary damages, the court is persuaded that sovereign immunity bars this claim for want of subject matter jurisdiction. The plaintiff has brought suit against the office of the state's attorney for actions it took in its official capacity when it brought charges against the plaintiff that allegedly contravened his plea agreement. Additionally, the plaintiff seeks monetary damages from the state in the amount of $912,000, which equates to $300 for each day the plaintiff believes he was illegally incarcerated. Thus, the plaintiff seeks monetary damages from the state of Connecticut for the official actions of its prosecutors, which is foreclosed by the doctrine of sovereign immunity unless the plaintiff's suit falls within a recognized exception.
It is noteworthy that the office of the state's attorney is the named defendant in this suit, which enjoys sovereign immunity protection as an agent of the state. See State v. Moynahan, 164 Conn. 560, 568, CT Page 10284 32 A.2d 199, cert. denied, 414 U.S. 976, 94 S.Ct. 291, 38 L.Ed.2d 219 (1973) (state's attorney is agent of the state); Johnson v. O'Connor, Superior Court, judicial district of Hartford, Docket No. CV 03 0826567 (Jun. 3, 2004, Stengel, J.) (state's attorney enjoys sovereign immunity). Moreover, the parties do not dispute that the state of Connecticut, and not an officer of the state acting in an individual capacity, is the defendant in this case.
The court is, therefore, obliged to inquire whether "the legislature, either expressly or by force of a necessary implication, statutorily waived the state's sovereign immunity" for the actions of a state prosecutor in the performance of their official duties. Martinez v. Dept of Public Safety, supra, 263 Conn. 86. Also pertinent to this analysis, our General Assembly has delegated to the claims commissioner the sole authority to waive sovereign immunity and allow suits to be brought against the state and its agents. General Statutes § 4-141 ("[t]here shall be a claims commissioner who shall hear and determine all claims against the state"); see also Miller v. Egan, supra, 265 Conn. 317 (the legislature has "expressly bar[red] suits upon claims cognizable by the claims commissioner except as he may authorize"); Cooper v. Delta Chi Housing Corp. of Connecticut, supra, 41 Conn.App. 64 (it is the claims commissioner "who is vested with sole authority to authorize a suit against the state"). In this case, the plaintiff fails to allege that either the claims commissioner or legislature has authorized a suit against the state for money damages for allegedly breaching the terms of a plea agreement. Accordingly, because neither the legislature nor the claims commissioner has authorized suit against the defendant, this court is without jurisdiction to hear the plaintiff's state law claim for monetary damages.
The plaintiff additionally seeks injunctive relief, requesting that this court vacate his previous convictions as well as order his release from prison. In pursuing this remedy, the plaintiff must demonstrate either that the defendant has trespassed upon a constitutional right; see Sentner v. Board of Trustees, supra, 184 Conn. 343-45; or that the defendant acted outside the scope of its statutory authority. See Miller v. Egan, supra, 265 Conn. 327. Although the plaintiff couches his legal argument in terms of the defendant breaching the terms of his plea agreement, a fair reading of his complaint intimates the gravamen of his argument to be that the retroactive application to him of the mandatory sex offender registration requirements violates the tenets of due process and the ex post facto clause of the constitution of the United States. The plaintiff does not argue that the defendant acted outside the scope of its statutory authority.
Because the plaintiff does not argue that he is entitled to greater due process protection under our state constitution, the court limits its consideration to potential violations of the fourteenth amendment to the United States constitution. "We have repeatedly apprised litigants that we will not entertain a state constitutional claim unless the defendant has provided an independent analysis under the particular provisions of the state constitution at issue . . . Without a separately briefed and analyzed state constitutional claim, we deem abandoned the defendants claim . . ." State v. Robinson, 227 Conn. 711, 721-22, 631 A.2d 288 (1993).
With respect to the plaintiff's allegations that his constitutional liberties were impugned, it is noted that both the United States Supreme Court and the Connecticut Supreme Court have held General Statute § 54-252 to be conterminous with the federal due process imperatives enshrined in the fourteenth amendment to the United States constitution. See Connecticut Dept. Of Public Safety v. Doe, 538 U.S. 1, 4, 123 S.Ct. 1160, 155 L.Ed.2d 98 (2003) (due process does not require predeprivation hearing to determine whether previously convicted sex offender still danger to society before retroactively imposing registration requirements); State v. Waterman, 264 Conn. 484, 497, 825 A.2d 63 (2003) (due process does not require judge to revisit offender's sentence to retroactively impose registration requirements because § 54-252 is ministerial and not punitive). Similarly, § 54-252 does not offend the guarantee against ex post facto laws cabined in article one, § 10, cl. 1, of the constitution of the United States. See Smith v. Doe, 538 U.S. 84, 105-06, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003) (stating that sex offender registration statute nearly identical to Connecticut's "is nonpunitive, and its retroactive application does not violate the Ex Post Facto Clause"); State v. Kelly, 256 Conn. 23, 95, 770 A.2d 908 (2001) (§ 54-252 "is not punitive for ex post facto purposes"); State v. Waterman, supra, 264 Conn. 496-97 (court permitted to impose registration requirements on offender that was sentenced prior to enactment of § 54-252 because registration requirements are not punitive).
U.S. Coast., amend. XIV, § 1 states in relevant part: "[N]or shall any state deprive any person of life, liberty, or property, without due process of law."
Article one, § 10, cl. 1, of the constitution of the United States provides: "No state shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make anything but gold and silver coin a tender in payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or grant any title of nobility."
In this case, the defendant argues that his plea agreement was violated because he did not stipulate to the registration requirements at the time he pleaded guilty to the first degree sexual assault charges. This argument is unavailing, however, because the registration requirements are not punitive in nature, and are not, therefore, germane to sentencing negotiations in the context of a plea agreement. State v. Waterman, supra, 264 Conn. 496-97. Indeed, in Waterman, our Supreme Court explicitly held that a sexual offender who had already been sentenced could later be required to register with the mandatory sex offender registration requirements. Id.
Although our Supreme Court has indicated that it is desirable for a court to inform an offender of the registration requirements at the time of sentencing this is not required and does not present a constitutional issue. State v. Waterman, supra, 264 Conn. 497 n. 12. Moreover, it was impossible for the sentencing court to make this advisement because the registration requirement had not been enacted at the time of the plaintiff's conviction.
Consequently, the plaintiff is unable to avail himself of the exception to sovereign immunity occasioned by a substantial claim that the state or one of its officers has violated his constitutional rights. Neither the plaintiff's right to due process nor his protection from ex post facto laws were encroached by the defendant's enforcement of the ministerial registration regime set forth in § 54-252. Accordingly, this court holds that it is without jurisdiction to hear the plaintiff's suit for injunctive relief because the defendant is shielded by sovereign immunity and the plaintiff has not alleged a constitutional violation that would except his claim.
Moreover, the court additionally holds that the defendant is also entitled to absolute judicial immunity, which likewise implicates this court's subject matter jurisdiction and strips this court of jurisdiction to hear the plaintiff's claims. See DeLaurentis v. New Haven, 220 Conn. 225, 242, 597 A.2d 807 (1991) ("because prosecutors are such an integral part of the judicial system . . . this court has repeatedly recognized that they are entitled to absolute immunity for their conduct as participants in the judicial proceeding") (citation omitted; internal quotation marks omitted); accord, Carrubba v. Moskowitz, 274 Conn. 533, 541, 877 A.2d 773 (2005); see also Chadha v. Charlotte Hungerford Hospital, 272 Conn. 776, 865 A.2d 1163 (2005) (absolute immunity and sovereign immunity both share purpose of "protect[ing] against the threat of suit") (emphasis added); Day v. Smith, Superior Court, judicial district of New Haven, Docket No. CV 07 4027999 (February 11, 2007, Bellis, J.) (absolute immunity implicates subject matter jurisdiction). Consequently, because the plaintiff fails to allege that the defendant acted outside its judicial capacity or without jurisdiction, the court dismisses the plaintiff's case on the alternative ground that, as prosecutors, the office of the state's attorney is entitled to absolute immunity, and that this court is, therefore, without subject matter jurisdiction to hear the claims alleged against it.
CONCLUSION
For the reasons set forth above, the court dismisses for want of subject matter jurisdiction the plaintiff's complaint as to its prayers for monetary damages and injunctive relief. To the extent that the remaining allegations of the plaintiff's complaint can be read as a petition for habeas corpus, it is dismissed for failing to state a claim upon which relief can be granted. Accordingly, the court does not reach the defendant's motion to strike as the case is dismissed.