Opinion
No. CV08-4038426
July 7, 2009
Memorandum of Decision
Before this court is the motion to dismiss and memorandum of law filed by the defendant, state treasurer Denise L. Nappier, on September 3, 2008. The plaintiff, representing himself, filed his objection to the motion to dismiss, which encompassed his memorandum of law on October 3, 2008. Having reviewed the briefs filed by the parties and considered the arguments of counsel, this court grants the defendant's motion to dismiss.
On February 21, 2008, the Hartford Probate Court, Killian, J., named the plaintiff, Kevin L. Upshaw, as successor trustee for the Ralph Brown trust to reclaim trust assets. On March 4, 2008, the plaintiff filed claim number 593373 with the state treasurer's unclaimed property division pursuant to General Statutes § 3-70a to recover cash proceeds and dividends totaling $159,989.07 that escheated to the state in the name of Ralph Brown. On May 2, 2008, the defendant sent the plaintiff written notice that the treasurer's office was denying his claim, explaining that the property claimed was not trust property but rather had belonged to Ralph Brown.
General Statutes § 3-70a(a), which defines the treasurer's authority to decide claims for escheated property, provides in relevant part: "Any person claiming an interest in property surrendered to the Treasurer . . . may claim such property, or the proceeds from the sale thereof, at any time thereafter. Any person claiming an interest in such property shall file a certified claim with the Treasurer, setting forth the facts upon which such party claims to be entitled to recover such money or property . . ." Section 3-70a(b) provides in relevant part: "The Treasurer shall consider each claim not later than ninety days after it is filed" and "may hold hearings on any claim and may refer any claim to the Claims Commissioner . . ."
The plaintiff commenced this action on June 26, 2008, by service of process of a complaint entitled "verified petition for mandamus to compel the state treasurer to comply with final order or decree of probate court and make written return of compliance with order or decree to probate court" on the defendant. Through his petition, the plaintiff seeks (1) "a mandamus ordering and directing the [treasurer] to comply with the final order or decree and legal findings of the probate court by returning the escheated property . . . to the [plaintiff]" and (2) "a mandamus ordering and directing the [treasurer] to make a written return of compliance with the order or decree to the probate court."
Discussion
"Pursuant 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). "[T]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss." (Internal quotation marks omitted.) Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007).
In her motion to dismiss, the defendant asserts that the plaintiff's action, which seeks relief via a writ of mandamus, is nevertheless an action seeking monetary relief and, therefore, is barred by the doctrine of sovereign immunity. In the alternative, the defendant also asserts that even if this action is more akin to injunctive or declaratory relief, it is also barred by the doctrine of sovereign immunity, to the extent that the plaintiff has failed to assert that the defendant is acting pursuant to an unconstitutional statute or in excess of her statutory authority.
The Supreme Court has "long recognized the validity of the common-law principle that the state cannot be sued without its consent" and "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." (Citation omitted; internal quotation marks omitted.) Miller v. Egan, 265 Conn. 301, 313, 828 A.2d 549 (2003). "[A] plaintiff seeking to circumvent the doctrine of sovereign immunity 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." (Citation omitted.) Id., 314.
Although the Supreme Court has recognized an exception to sovereign immunity for actions seeking declaratory or injunctive relief against a state officer for conduct in excess of statutory authority, it has declined to apply this exception to claims against the state for money damages. Miller v. Egan, supra, 265 Conn. 315. A plaintiff seeking to assert any claim for money damages against the state must either show that the legislature waived sovereign immunity or must obtain authorization to sue from the claims commissioner pursuant to General Statutes §§ 4-141 through 4-165b. Id., 317.
In the present case, the plaintiff does not assert that he obtained authorization to sue from the claims commissioner or that the legislature has waived sovereign immunity. Thus, to overcome sovereign immunity, the plaintiff must demonstrate both that his claim is for declarative or injunctive relief rather than money damages and that the defendant has acted in excess of her statutory authority or pursuant to an unconstitutional statute.
In St. George v. Gordon, 264 Conn. 538, 550 n. 12, 825 A.2d 90 (2003), the Supreme Court held that the exceptions to sovereign immunity for declaratory judgments did not apply to an action by the executor of a high sheriff's estate seeking a declaratory judgment as to whether the comptroller and the attorney general were obliged to indemnify the high sheriff for a federal court judgment against him. "Because the plaintiffs seek a declaratory judgment that establishes that [the high sheriff's] estate is entitled to indemnification and an order to [the comptroller] to authorize payment, we construe the plaintiff's claim as one for monetary damages." Id.
The legislature amended General Statutes § 5-141d to overrule the holding of St. George v. Gordon, 264 Conn. 538, 825 A.2d 90 (2003), thereby allowing "a state officer or employee to bring an action in the Superior Court against the state for indemnification for legal fees and costs incurred by such officer or employee in the defense of any civil action in any state or federal court arising out of any alleged act, omission or deprivation that occurred or is alleged to have occurred in the scope of employment." Flanagan v. Blumenthal, 100 Conn.App. 255, 257, 917 A.2d 1047 (2007).
Likewise, in Alter Associates, LLC v. Lantz, 90 Conn.App. 15, 19, 876 A.2d 1204 (2005), the Appellate Court upheld the trial court's determination that a contractor seeking an injunction or writ of mandamus to compel the department of corrections to proceed on a contract that the contractor claimed was wrongfully terminated was barred on sovereign immunity grounds because "the only remedy to which the [contractor] might be entitled was an award of monetary damages, which had to be presented to the claims commissioner." Id.
The defendant also argues that sovereign immunity bars litigants from recovering funds from the state on behalf of third parties, citing Herzig v. Horrigan, 34 Conn.App. 816, 644 A.2d 360 (1994). Relying on Stillman v. Isham, 11 Conn. 124 (1835), the Herzig court held that sovereign immunity prevents a litigant from garnishing lottery winnings held by the state on behalf of a third party, reasoning that if the court allowed such an exception to sovereign immunity, the state could be subject to suits by judgment creditors for "thousands" of judgment debtors who are vendors or lottery winners with funds held by the state. Id., 821-22. In addition, the defendant cites Superior Court cases in which courts have held that sovereign immunity bars creditors from reaching assets held in the custody of state officials, including Ross v. Smith, Superior Court, judicial district of Windham at Putnam, Docket No. CV 03 0069400 (Apr. 14, 2003, Foley J.) [ 34 Conn. L. Rptr. 448] (sovereign immunity barred plaintiff from garnishing assets held by clerk of Superior Court); Morgan v. Schmid, 27 Conn.Sup. 481, 244 A.2d 824 (1965) (funds held by clerk of Superior Court not subject to garnishment); and Millstone Point Co. v. Rutka, 27 Conn.Sup. 482, 244 A.2d 829 (1966) (state cannot be a garnishee).
Given its review of the relevant authority, this court agrees with the defendant that this action, as a matter of law, must be construed as a claim for money damages and is thus barred by the doctrine of sovereign immunity. Even if, however, the court were to recognize the plaintiff's action as seeking declarative or injunctive relief, the plaintiff has failed to demonstrate that the defendant has acted pursuant to an unconstitutional statute or exceeded her statutory duties.
Instead and without authority, the plaintiff asserts that the defendant has "a legal obligation to comply with the final order or decree of the probate court" pursuant to General Statutes § 45a-130. "The probate court is a court of limited jurisdiction and has only such powers as are given it by statute or are reasonably to be implied in order to carry out its statutory powers." (Internal quotation marks omitted.) Dept. of Social Services v. Saunders, 247 Conn. 686, 708, 724 A.2d 1093 (1999). To that end, the language of the probate court's decree (attached as an exhibit to the complaint) does not order the defendant to return Ralph Brown's escheated property. It merely empowers the plaintiff to act as successor trustee in order to file a claim for the trust's assets, on the assumption that the property escheated to the state was in fact trust assets.
Under General Statutes § 3-70a, the defendant is vested with the authority to decide claims for escheated property. In denying the plaintiff's claim based on her determination that the property was not trust assets, the defendant was acting within her statutory authority. As such, this court concludes that the plaintiff's action, even if construed as an action for injunctive relief, is barred by sovereign immunity on this basis as well.
The Defendant's Motion to Dismiss is hereby GRANTED.