Avoletta v. State ( 2014 )

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PETER J. AVOLETTA ET AL. v. STATE
OF CONNECTICUT
(AC 35704)
Alvord, Bear and Harper, Js.*
Argued April 24—officially released August 12, 2014
(Appeal from Superior Court, judicial district of
Hartford, Sheridan, J.)
Deborah G. Stevenson, for the appellants (plaintiffs).
Mark F. Kohler, assistant attorney general, with
whom, on the brief, were George Jepsen, attorney gen-
eral, and Jane R. Rosenberg, assistant attorney general,
for the appellee (defendant).
Opinion
BEAR, J. The plaintiffs, Peter J. Avoletta, Matthew
Avoletta, and their mother, Joanne Avoletta, appeal
from the judgment of the trial court dismissing their
action against the defendant, the state of Connecticut,
for lack of subject matter jurisdiction. The plaintiffs
claim that the court erred in holding that the General
Assembly’s joint resolution in 2011 enabling them to
sue the defendant was an unconstitutional public emol-
ument. We disagree and affirm the judgment of the
trial court.
The following relevant facts, as set forth in the court’s
May 6, 2013 memorandum of decision, and procedural
history are relevant to our resolution of this appeal. ‘‘In
their complaint, the plaintiffs allege that the defendant
failed to provide Peter Avoletta and Matthew Avoletta
a free appropriate public education in a safe setting in
violation of their rights under the federal and state
constitutions and under numerous state statutes.
‘‘Specifically, the plaintiffs allege the following. From
August, 1999 through June, 2002, Peter attended Torrin-
gton Middle School, and from August, 2002 through
June, 2003, he attended Torrington High School. From
August, 1997 through June, 2003, Matthew attended Tor-
rington Elementary School. The plaintiffs allege that at
all relevant times, the defendant failed to ensure that
Torrington Middle School and Torrington High School
were properly maintained. The plaintiffs allege that
those buildings incurred water leaks, bacteria, mold,
dampness, and poor indoor air quality.
‘‘As a result of the poor conditions, Peter and Mat-
thew suffered physical ailments. . . . [D]uring the
2003-2004 school year, Peter received homebound
instruction from Torrington High School. For the 2004-
2005 and 2005-2006 school years, the plaintiffs
requested that Peter be placed in an out-of-district pub-
lic or private school, rather than return to Torrington
High School. Torrington did not acquiesce to this
request, and Peter’s parents placed him in a private
school at their own expense from August, 2004, through
his graduation in June, 2006.
‘‘As to Matthew . . . Matthew’s physician recom-
mended that the environment in the middle school,
which Matthew was to enter in August, 2003, was hostile
to a child with Matthew’s conditions and that Matthew’s
attendance at Torrington Middle School was ‘medically
contraindicated.’ From August, 2003, through his gradu-
ation in June, 2010, Matthew attended a private school.
The plaintiffs now seek reimbursement for tuition and
costs for the private education. . . .
‘‘On May 2, 2007, the plaintiffs filed a notice of claim
to the Claims Commissioner alleging essentially the
same facts presently before the court. Following a
which included multiple grounds, the Claims Commis-
sioner dismissed the claim, stating: ‘This claim seeks
to address matters occurring more than one year prior
to the date of the filing. . . . The commissioner lacks
subject matter jurisdiction. The claim is dismissed
because it was filed outside of the statutorily prescribed
one year time limit.’
‘‘Subsequently, the plaintiffs, pursuant to General
Statutes § 4-158, sought review of the Claims Commis-
sioner’s decision from the legislature, stating that the
commissioner incorrectly ruled on their case. The plain-
tiffs sought either a monetary award or the right to [sue
the defendant]. In the alternative, the plaintiffs sought
a special act, pursuant to [General Statutes] § 4-148
(b), declaring that despite the claim’s untimeliness, the
plaintiffs should be granted the right to [present their
claim to the Claims Commissioner].
‘‘On May 27, 2011, and June 8, 2011, respectively,
the House [of Representatives] and the Senate voted
unanimously to approve House Joint Resolution No.
11-34, which states, in relevant part: ‘Resolved by this
Assembly . . . Sec. 2. That the decision of the Claims
Commissioner, file numbers 21101, 21102 and 21103 of
said commissioner, ordering the dismissal of the claims
against the state in excess of seven thousand five hun-
dred dollars of Joanne Avoletta, Peter J. Avoletta and
Matthew Avoletta, is vacated and the claimants are
authorized to institute and prosecute to final judgment
an action against the state to recover damages as com-
pensation for injury to person or damage to property,
or both, allegedly suffered by the claimants as set forth
in said claims. Such action shall be brought not later
than one year from the date of the final adoption by
the General Assembly of this resolution.’
‘‘On May 10, 2012, the plaintiffs instituted this action.
On July 30, 2012, the defendant filed this motion to
dismiss on the ground that the plaintiffs’ claims are
barred by the doctrine of sovereign immunity. The
[defendant] argues that the joint resolution that gave
the plaintiffs the right to sue was not done in accordance
with proper legislative procedure. The [defendant] fur-
ther argues that, even if the resolution was validly exe-
cuted, it is constitutionally infirm as a public
emolument.’’ The court held with respect to the defen-
dant’s first argument: ‘‘[U]nder the facts and circum-
stances of the present case, the legislature was within
its rights to grant the right to sue via a joint resolution.’’
It held with respect to the defendant’s second argument:
‘‘Allowing the plaintiffs to file suit directly in this matter,
when this court has determined that their action was
untimely, provides them a right unavailable to other
parties. While the legislature need not enact a special
act when vacating the Claims Commissioner’s dismissal
of the matter, allowing a plaintiff with an untimely claim
to circumvent § 4-148 (b) without any explanation or
public purpose constitutes a public emolument when
the action is untimely.’’ The court accordingly con-
cluded that the defendant was entitled to sovereign
immunity and granted its motion to dismiss for lack of
subject matter jurisdiction. This appeal followed.
I
LEGAL STANDARDS
A
Standard of Review
‘‘We begin by setting out the applicable legal princi-
ples and standard of review. 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. . . . A motion to dismiss tests, inter alia,
whether, on the face of the record, the court is without
jurisdiction. . . . [O]ur review of the trial court’s ulti-
mate legal conclusion and resulting grant of the motion
to dismiss will be de novo.’’ (Internal quotation marks
omitted.) Hayes Family Ltd. Partnership v. Glaston-
bury, 132 Conn. App. 218, 221, 31 A.3d 429 (2011).
‘‘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, constru-
ing them in a manner most favorable to the pleader.
. . . The motion to dismiss . . . admits all facts which
are well pleaded, invokes the existing record and must
be decided upon that alone. . . . [I]n determining
whether a court has subject matter jurisdiction, every
presumption favoring jurisdiction should be indulged.’’
(Citation omitted; internal quotation marks omitted.)
Id., 221–22.
B
Sovereign Immunity
‘‘[T]he doctrine of sovereign immunity implicates
subject matter jurisdiction and is therefore a basis for
granting a motion to dismiss. . . . 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. . . . The doctrine of sovereign immunity
operates as a strong presumption in favor of the state’s
immunity from liability or suit. . . . [T]o circumvent
the strong presumption of sovereign immunity in an
action for monetary damages, the burden is on the plain-
tiff to show that . . . the legislature, either expressly
or by force of a necessary implication, statutorily
waived the state’s sovereign immunity . . . . In the
absence of a statutory waiver of sovereign immunity,
the plaintiff may not bring an action against the state
for monetary damages without authorization from the
claims commissioner to do so.’’ (Citations omitted;
internal quotation marks omitted.) DePietro v. Dept. of
Public Safety, 126 Conn. App. 414, 417–18, 11 A.3d 1149,
cert. granted on other grounds, 300 Conn. 932, 17 A.3d
69 (2011).
‘‘When sovereign immunity has not been waived, the
. . . commissioner is authorized by statute to hear
monetary claims against the state and determine
whether the claimant has a cognizable claim. . . . The
. . . commissioner, if he deems it just and equitable,
may sanction suit against the state on any claim which,
in his opinion, presents an issue of law or fact under
which the state, were it a private person, could be
liable.’’ (Citation omitted; internal quotation marks
omitted.) Lagassey v. State, 268 Conn. 723, 732, 846
A.2d 831 (2004).
‘‘Section 4-148 (a) sets forth the time frame in which
a claimant must present a claim to the Claims Commis-
sioner. Specifically, that subsection provides that ‘no
claim shall be presented . . . but within one year after
it accrues. Claims for injury to person or damage to
property shall be deemed to accrue on the date when
the damage or injury is sustained or discovered or in
the exercise of reasonable care should have been dis-
covered, provided no claim shall be presented more
than three years from the date of the act or event com-
plained of.’ General Statutes § 4-148 (a).
‘‘Subsection (b) of § 4-148 provides a legislative
exception to the time frame for obtaining a waiver of
sovereign immunity. ‘The General Assembly may, by
special act, authorize a person to present a claim to
the Claims Commissioner after the time limitations set
forth in subsection (a) of this section have expired if
it deems such authorization to be just and equitable
and makes an express finding that such authorization
is supported by compelling equitable circumstances and
would serve a public purpose. . . .’ General Statutes
§ 4-148 (b).’’ Morneau v. State, 150 Conn. App. 237,
255–56, 90 A.3d 1003 (2014).
‘‘A claimant [also] may seek review by the General
Assembly in certain cases where the Claims Commis-
sioner has denied or dismissed the claim requesting
permission to sue the state. General Statutes § 4-158
(b) (1). If such request for review is made, the Claims
Commissioner must submit the claim, a copy of the
Claims Commissioner’s findings and a hearing record
of the claim to the General Assembly for review. General
Statutes § 4-159 (a) (2). The General Assembly will then
either confirm the decision of the Claims Commis-
sioner; see General Statutes § 4-159 (b) (1) (A); or
vacate the decision, order payment of the claim in a
specified amount or authorize the claimant to sue the
state. See General Statutes § 4-159 (b) (1) (B).’’ Morneau
v. State, supra, 150 Conn. App. 248.
II
THE PLAINTIFFS’ CLAIM
The plaintiffs have articulated their claim as follows:
‘‘The trial court abused its discretion in granting the
motion to dismiss when it improperly concluded that
Joint Resolution No. 11-34, adopted pursuant to General
Statutes §§ 4-158 and 4-159, vacating the state Claims
Commissioner’s decision and allowing the plaintiffs to
sue the [defendant], is constitutionally proscribed as a
public emolument.’’ The plaintiffs make the following
arguments in support of their claim. First, the plaintiffs
contend that the court failed to apply the correct stan-
dard of review because it did not consider the entire
record and did not consider the factual allegations in
the complaint in the light most favorable to them. The
plaintiffs further argue on this point that the court’s
failure to apply the correct standard of review affected
its determination regarding the timeliness of their
action. Second, the plaintiffs contend that the court
erred in applying § 4-148 (b) to determine whether the
resolution was an unconstitutional public emolument
because the General Assembly acted pursuant to §§ 4-
158 and 4-159, not § 4-148, when it passed the resolution.
Third, the plaintiffs contend that the court’s review of
the resolution was an ultra vires act in violation of § 4-
148 (b). Finally, the plaintiffs contend that the court
erred in holding that the resolution was an unconstitu-
tional public emolument because the defendant did not
meet its burden of ‘‘demonstrat[ing] that the sole objec-
tive of the General Assembly [was] to grant personal
gain or advantage to an individual.’’ (Internal quotation
marks omitted.) Chotkowski v. State, 240 Conn. 246,
257, 690 A.2d 368 (1997). We are not persuaded.1
In resolving the plaintiffs’ claim, we look to a case
recently decided by this court, Morneau v. State, supra,150 Conn. App. 237, for guidance.2 Morneau also
involved: (1) the Claims Commissioner’s dismissal of
the plaintiff’s request for permission to sue the state
defendants because the request was untimely; (2) the
plaintiff’s subsequent request to the General Assembly
for review of the Claims Commissioner’s decision under
§ 4-158 (b); (3) the same joint resolution at issue in the
present case, granting the plaintiff the right to sue the
defendants;3 and (4) the trial court’s judgment of dis-
missal of the plaintiff’s action on the ground of sover-
eign immunity and therefore lack of subject matter
jurisdiction. Id., 242–45. One of the claims on appeal
in Morneau was that the trial court erred in holding
that the resolution was an unconstitutional public emol-
ument with respect to the plaintiff in Morneau. Id., 254.
The defendants in Morneau argued ‘‘that the resolution
did not contain a statement of public purpose and bene-
fited only the plaintiff, and therefore the court properly
determined that it violated the Connecticut constitu-
tion.’’ Id., 254–55. This court agreed with the defendants.
Like the plaintiff’s claim in Morneau, the plaintiffs’
claim in the present case challenges both the court’s
determination that their action was untimely and the
determination that the resolution was an unconstitu-
tional public emolument with respect to them. ‘‘[O]ur
inquiry [therefore] is twofold: Whether the court prop-
erly decided that [the plaintiffs’ cause] of action [was]
untimely and, if so, whether it properly concluded that
the resolution did not serve a public purpose and there-
fore was unconstitutional.’’ Id., 256.
We look to Lagassey v. State, supra, 268 Conn. 735–
36, for further explanation regarding the twofold nature
of our inquiry: ‘‘[T]he plaintiff will prevail if she can
demonstrate that the initial determination of the com-
missioner concerning noncompliance with § 4-148 (a)
was mistaken . . . [because if that is the case], it could
not be said that the plaintiff had been given any special
privilege . . . . In order for the defendant to prevail,
however, not only must we agree with the commis-
sioner and the trial court that the plaintiff’s claim was
untimely as a matter of law, but we must also be unable
to discern any conceivable justification for [the] chal-
lenged legislation from the public viewpoint . . . . Put
another way, in order for the plaintiff to prevail, it is
sufficient to show that her claim was not untimely as
a matter of law; in order for the defendant to prevail,
we must determine that [the resolution]4 furthers no
public purpose, which . . . necessarily is predicated
upon a determination that the plaintiff’s claim was
untimely as a matter of law.’’ (Citations omitted; foot-
note added; internal quotation marks omitted.)
A
Whether the Plaintiffs’ Action was Untimely
The plaintiffs argue that the court erred in concluding
that their action was untimely under § 4-148 (a) because
it disregarded certain facts alleged in the complaint and
established by the record that demonstrated that their
claim accrued less than one year before they filed their
notice with the Claims Commissioner. We are not per-
suaded.
In addressing this argument, we look to Morneau,
which, in turn, looked to Lagassey v. State, supra, 268
Conn. 723: ‘‘In its analysis, our Supreme Court consid-
ered General Statutes § 52-5845 when it interpreted § 4-
148 (a). Both statutes provide that the limitation period
begins to run when a plaintiff either sustains or dis-
covers the injury or, in the exercise of reasonable care,
should have discovered the injury, and both statutes
contain a three year period of repose. . . . The limita-
tion period for actions in negligence begins to run on
the date when the injury is first discovered or in the
exercise of reasonable care should have been discov-
ered. . . . In this regard, the term injury is synonymous
with legal injury or actionable harm. Actionable harm
occurs when the plaintiff discovers, or in the exercise
of reasonable care, should have discovered the essential
elements of a cause of action. . . . A breach of duty
by the defendant and a causal connection between the
defendant’s breach of duty and the resulting harm to
the plaintiff are essential elements of a cause of action
in negligence; they are therefore necessary ingredients
for actionable harm. . . . Furthermore, actionable
harm may occur when the plaintiff has knowledge of
facts that would put a reasonable person on notice of
the nature and extent of an injury, and that the injury
was caused by the negligent conduct of another. . . .
In this regard, the harm complained of need not have
reached its fullest manifestation in order for the limita-
tion period to begin to run; a party need only have
suffered some form of actionable harm.’’ (Citations
omitted; internal quotation marks omitted.) Morneau
v. State, supra, 150 Conn. App. 257–58.
The court in the present case determined: ‘‘Here, the
plaintiffs’ claims are all based in the fact that Peter
Avoletta and Matthew Avoletta were denied a fair and
appropriate public education. The plaintiffs undisput-
edly discovered a harm by the time Peter and Matthew
were taken out of the Torrington public schools. Peter
received homebound education in 2003-2004 and
attended private school thereafter. Matthew attended
private school from 2003-2004 until his graduation.
Regardless of the specific dates of these actions, the
plaintiffs were clearly aware of the school conditions
far more than a year before the May 2, 2007 filing with
the Claims Commissioner.
‘‘The plaintiffs contend, however, that they were
unaware of harm caused by the state until a later date.
The plaintiffs acknowledge that, in 2005, upon the local
school district’s denial of their claim for alternative
school placement under the federal Individuals with
Disabilities Education Act (IDEA) [20 U.S.C. § 1400 et
seq.], the state Department of Education and state
Office of Protection and Advocacy for Persons with
Disabilities advised the plaintiffs to seek review of the
school district’s denial. The denial was confirmed after
review, apparently also in 2005. The plaintiffs allege
that the [defendant] did not, at that time, advise the
plaintiffs that they could further appeal. The plaintiffs
allege that they were unaware of this right for review
until they hired private counsel in 2006. They argue,
therefore, that they were not aware that they had an
actionable claim until after they hired counsel. The date
of the actionable harm cannot be delayed until the plain-
tiffs acquired counsel. Even if the date of the harm is
as late as the [defendant’s] failure to advise the plaintiffs
of their rights in 2005, the 2007 filing with the Claims
Commissioner was untimely.’’
The plaintiffs argue that the court applied the wrong
standard of review because it disregarded certain fac-
tual allegations in the complaint and certain testimony
that they gave to the legislature when the court deter-
mined that their action was untimely. They make this
argument in support of their position that their May 2,
2007 notice of claim to the Claims Commissioner was
timely because they brought it within one year of Sep-
tember 15, 2006, which is when they allege that former
‘‘Attorney General Richard Blumenthal requested
interim education Commissioner George Coleman to
monitor the actions of the Torrington School District
and ensure that the District has taken the appropriate
required and recommended corrective action with
respect to providing a suitable environment for students
who have health problems that may be exacerbated
by unsatisfactory indoor environmental conditions in
school buildings.’’ (Internal quotation marks omitted.)
According to the plaintiffs, September 15, 2006, is the
date when their claim accrued because they ‘‘only
became aware of the [defendant’s] failure to [perform
the actions requested by Blumenthal] . . . sometime
thereafter and . . . [they] filed their claim with the
Claims Commissioner only seven months later . . . .’’
We disagree. The plaintiffs seem to argue that the
statute of limitations on their claim began to run when
the defendant failed to act in accordance with Blumen-
thal’s September 15, 2006 communication to Coleman.
Yet, the date that they use in their statute of limitations
analysis is the date of the communication, not the date
of the defendant’s alleged failure to comply with the
communication. We further note that the plaintiffs have
not provided any analysis or authority to explain how
September 15, 2006, or any date within one year of May
2, 2007, qualifies as the date when they ‘‘discover[ed],
or in the exercise of reasonable care, should have dis-
covered the essential elements of’’ their claim; (internal
quotation marks omitted) Morneau v. State, supra, 150
Conn. App. 257; that the defendant violated certain state
constitutional and statutory provisions by failing to pro-
vide ‘‘a free appropriate public education to [Peter Avo-
letta and Matthew Avoletta] in a safe school setting
without discrimination due to their disabilities.’’
This court previously has stated with respect to the
statute of limitations in § 52-584 that it ‘‘begins to run
when the plaintiff discovers some form of actionable
harm, not the fullest manifestation thereof. . . . The
focus is on the plaintiff’s knowledge of facts, rather
than on discovery of applicable legal theories.’’ (Internal
quotation marks omitted.) Wojtkiewicz v. Middlesex
Hospital, 141 Conn. App. 282, 287, 60 A.3d 1028, cert.
denied, 308 Conn. 949, 67 A.3d 291 (2013). We apply this
language in this case because, as previously discussed,
both this court and our Supreme Court have drawn
comparisons between the statute of limitations in § 52-
584 and the statute of limitations in § 4-148 (a), which
presently is at issue. We agree with the court that the
plaintiffs’ decisions to remove Peter Avoletta and Mat-
thew Avoletta from the Torrington public school system
in 2003 and 2004 demonstrate that the plaintiffs ‘‘discov-
er[ed] some form of actionable harm’’ and had ‘‘knowl-
edge of facts’’; (internal quotation marks omitted) id.;
underlying their claim well before September 15, 2006.
We are not persuaded by the plaintiffs’ attempts to
demonstrate otherwise by directing our attention to
certain facts alleged in the complaint and established
by the record that pertain to their communications with
the defendant and various of its agents between 2003
and 2007. Even when viewed in the light most favorable
to the plaintiffs, these alleged facts demonstrate the
plaintiffs’ earlier discovery and knowledge of the occur-
rence of the alleged actionable harm underlying their
claim.6 We thus reject the plaintiffs’ argument that the
trial court misapplied the law in concluding that their
claim was untimely.
B
Whether the Resolution Was an Unconstitutional
Public Emolument
The plaintiffs also argue that the court erred in hold-
ing that the resolution was an unconstitutional public
emolument because the court misapplied the relevant
law, the defendant did not meet its burden of demon-
strating that the sole basis of the resolution was the
plaintiffs’ personal gain, and the General Assembly rea-
sonably could have concluded that the resolution
served a public purpose, given the evidence before it.
We are not persuaded.
The court determined: ‘‘Here, the plaintiffs have been
granted two rights not otherwise given to the public.
First, the plaintiffs have been given the right to pursue
an untimely claim. Second, because the legislature did
not find the claim untimely, the plaintiffs have been
given the right to pursue this suit in Superior Court
without receiving a decision on the merits from the
Claims Commissioner as would have occurred if the
legislature correctly concurred with the Claims Com-
missioner’s decision regarding timeliness and either
upheld the commissioner’s decision or chose to use § 4-
148 (b) to send the matter back to the commissioner
for further proceedings.
‘‘In the joint resolution, the legislature has offered
no public purpose for granting the plaintiffs such rights.
The resolution says only that the plaintiffs may sue.
The legislative history does nothing more to illuminate
a public purpose. . . .
‘‘Allowing the plaintiffs to file suit directly in this
matter, when this court has determined that their action
was untimely, provides them with a right unavailable
to other parties. While the legislature need not enact a
special act when vacating the Claims Commissioner’s
dismissal of the matter, allowing a plaintiff with an
untimely claim to circumvent § 4-148 (b) without any
explanation or public purpose, constitutes a public
emolument when the action is untimely.’’ (Citations
omitted.)
Morneau is wholly dispositive of the plaintiffs’ argu-
ment: ‘‘To prevail under article first, § 1, of our constitu-
tion,7 the state must demonstrate that the sole objective
of the General Assembly is to grant personal gain or
advantage to an individual. . . . If, however, an enact-
ment serves a legitimate public purpose, then it will
withstand a challenge under article first, § 1. . . .
‘‘The scope of our review as to whether an enactment
serves a public purpose is limited. [W]hat constitutes
a public purpose is primarily a question for the legisla-
ture, and its determination should not be reversed by
the court unless it is manifestly and palpably incorrect.
. . . In determining whether a special act serves a pub-
lic purpose, a court must uphold it unless there is no
reasonable ground upon which it can be sustained. . . .
Thus, if there be the least possibility that [the special
act] will be promotive in any degree of the public wel-
fare . . . we are bound to uphold it against a constitu-
tional challenge predicated on article first, § 1 [of the
state constitution]. . . .
‘‘In this regard, although a special act passed under
§ 4-148 (b) will undoubtedly confer a direct benefit upon
a particular claimant, we have found a public purpose
if it remedies an injustice done to that individual for
which the state itself bears responsibility. . . . In such
circumstances, the benefit conferred upon a private
party by the legislature may be viewed as incidental to
the overarching public interest that is served in remedy-
ing an injustice caused by the state. . . .
‘‘By contrast, we have consistently held that legisla-
tion seeking to remedy a procedural default for which
the state is not responsible does not serve a public
purpose and, accordingly, runs afoul of article first, § 1,
of the state constitution. . . . Similarly, where a spe-
cial act has allowed a person named therein to bring a
suit based upon a statutory cause of action that would
otherwise be barred for failure to comply with a time
limit specified in the statute, we have ordinarily been
unable to discern any public purpose sufficient to sus-
tain the enactment. . . .
‘‘Section 32 of the resolution authorizes the plaintiff,
and only the plaintiff, to commence a lawsuit against
the state for his alleged injuries, as detailed in the claim
presented to the Claims Commissioner. Notably absent
in this case was a declaration that it served a public
purpose, nor can we discern one. It merely provided
the plaintiff with an exclusive and private benefit. No
enactment creating a preference can withstand consti-
tutional attack if the sole objective of the General
Assembly is to grant personal gain or advantage to an
individual. . . . Although we are mindful of the heavy
burden assumed by those who challenge the constitu-
tionality of legislative actions . . . we conclude that
the court properly determined that the resolution in the
present case violated the state constitution’s prohibi-
tion against public emoluments . . . .’’ (Citations omit-
ted; emphasis in original; internal quotation marks
omitted.) Morneau v. State, supra, 150 Conn. App.
260–62.
Other than their respective references to the specific
claimants and their file numbers, §§ 2 and 32 of the
resolution are worded identically. The holding of this
court in Morneau that the resolution was an unconstitu-
tional public emolument with respect to the plaintiff
in that case therefore applies with equal force to the
plaintiffs in this case. For this reason, the plaintiffs’
argument fails.
The judgment is affirmed.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
We summarily reject two of these four arguments. We reject the plaintiffs’
argument that the court erroneously relied on § 4-148 (b) in determining
that the resolution was an unconstitutional public emolument because the
court came to its conclusion on the basis of article first, § 1, of the state
constitution, not § 4-148 (b). See part II B of this opinion. We also reject
the plaintiffs’ argument that the court’s review of the resolution was an
ultra vires act in violation of § 4-148 (b). That statutory subsection provides
in relevant part that ‘‘an express finding that . . . authorization [to present
an untimely claim to the Claims Commissioner] is supported by compelling
equitable circumstances and would serve a public purpose . . . shall not
be subject to review by the Superior Court,’’ but here, the General Assembly
made no such finding. General Statutes § 4-148 (b).
2
Even though Morneau postdates the trial court judgment, ‘‘[a]s a general
rule, judicial decisions apply retroactively. . . . A decision will not be
applied retroactively only if (1) it establishes a new principle of law, either
by overruling past precedent on which litigants have relied . . . or by decid-
ing an issue of first impression whose resolution was not clearly foreshad-
owed . . . (2) given its prior history, purpose and effect, retrospective
application of the rule would retard its operation; and (3) retroactive applica-
tion would produce substantial inequitable results, injustice or hardship.’’
(Internal quotation marks omitted.) Fortin v. Hartford Underwriters Ins.
Co., 139 Conn. App. 826, 835 n.4, 59 A.3d 247, cert. granted on other grounds,
308 Conn. 905, 61 A.3d 1098 (2013). None of these considerations are at
issue in the present matter.
3
As previously noted, § 2 of the resolution granted the plaintiffs the right
to sue the defendant. Section 32 of the resolution granted the plaintiff in
Morneau the right to sue the state defendants in that case. With the exception
of information specific to the present plaintiffs in § 2 and information specific
to the plaintiff in Morneau in § 32, the two sections are identical.
4
At issue in Lagassey was a special act passed pursuant to § 4-148 (b) that
allowed the plaintiff to present to the Claims Commissioner her otherwise
untimely claims against the state defendants. Lagassey v. State, supra, 268
Conn. 725–26. In contrast, at issue in the present case is a resolution passed
pursuant to § 4-159 (b) (1) (B) (ii) that allowed the plaintiffs to bring their
otherwise untimely action against the defendant in Superior Court. We
nonetheless cite this language from Lagassey because its applicability is
not affected by the nature of the legislative act at issue.
5
General Statutes § 52-584 provides in relevant part: ‘‘No action to recover
damages for injury to the person, or to real or personal property, caused
by negligence, or by reckless or wanton misconduct . . . shall be brought
but within two years from the date when the injury is first sustained or
discovered or in the exercise of reasonable care should have been discov-
ered, and except that no such action may be brought more than three years
from the date of the act or omission complained of . . . .’’
6
The plaintiffs argued in opposition to the motion to dismiss that ‘‘the
continuous course of conduct doctrine toll[ed] the statute of limitations.’’
The court rejected their argument and concluded: ‘‘Because the plaintiffs
discovered the harm far more than one year prior to filing their action, the
continuous course of conduct doctrine does not apply.’’ The plaintiffs have
not challenged that ruling on appeal.
7
‘‘Article first, § 1, of the constitution of Connecticut provides: ‘All men
when they form a social compact, are equal in rights; and no man or set of
men are entitled to exclusive public emoluments or privileges from the
community.’ ’’ Morneau v. State, supra, 150 Conn. App. 260 n.25.