Morneau v. State ( 2014 )

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RICKY A. MORNEAU v. STATE OF
CONNECTICUT ET AL.
(AC 35423)
DiPentima, C. J., and Sheldon and Flynn, Js.
Argued October 22, 2013—officially released May 20, 2014
(Appeal from Superior Court, judicial district of
Middlesex, Domnarski, J.)
Ricky A. Morneau, self-represented, the appellant
(plaintiff).
Michael K. Skold, assistant attorney general, with
whom, on the brief, was George Jepsen, attorney gen-
eral, for the appellees (named defendant et al.).
Opinion
DiPENTIMA, C. J. The plaintiff, Ricky A. Morneau,
appeals following the granting of a motion to dismiss
filed by the defendants1 in the case. The self-repre-
sented2 plaintiff raised a variety of issues and subissues
in his appellate brief, contending that the court improp-
erly granted the motion to dismiss. The defendants
counter that (1) certain causes of action set forth in
the plaintiff’s complaint never were presented to the
General Assembly and therefore were not encompassed
in the waiver of sovereign immunity authorized by the
General Assembly, (2) all but one of the remaining
causes of action were untimely and were public emolu-
ments in violation of article first, § 1, of the Connecticut
constitution, (3) the sole remaining cause of action
against two prosecutors properly was dismissed
because of absolute judicial immunity, and (4) the plain-
tiff lacked standing to seek injunctive relief. We agree
with the defendants, and, therefore, affirm the judgment
of the trial court.
The following facts and procedural history are neces-
sary for our resolution of this appeal.3 In May, 2007,
the plaintiff commenced a three count lawsuit in the
United States District Court for the District of Connecti-
cut. In that federal action, the plaintiff alleged that state
Marshals Louis C. Aresco and Louis Corneroli had
refused to serve process for him. The plaintiff also
claimed that he had sent a letter complaining about
the two marshals to then Attorney General Richard
Blumenthal and that the letter thereafter was forwarded
to the State Marshal Commission.4 After conducting an
investigation, the State Marshal Commission dismissed
the plaintiff’s complaint. See Morneau v. State, United
States District Court, Docket No. 3:07-cv-00-819-JBA (D.
Conn. July 7, 2008). The plaintiff further alleged that
the state, Aresco, Corneroli, Blumenthal, and the State
Marshal Commission violated his rights to due process
and equal protection, and conspired to violate those
rights. The District Court dismissed all of the plaintiff’s
claims, rendered judgment in favor of the defendants
and declined to exercise supplemental jurisdiction over
any state law claims. Id.
On August 24, 2009, the plaintiff commenced an
action in the Superior Court premised on allegations
that state Marshal Albenie Gagnon had overbilled the
plaintiff for services and made false statements, the
State Marshal Commission had denied his request for
certain documents, made pursuant to the Freedom of
Information Act, General Statutes § 1-200 et seq., and
the state had violated motion deadlines. The plaintiff
subsequently added state Marshal Timothy J. Bennett
as a defendant. The state successfully moved to dismiss
the action on the basis of sovereign immunity; however,
the action against the two marshals remained.5 The
court concluded that the plaintiff had failed to obtain
permission to sue the state from the Claims Commis-
sioner and thus the plaintiff’s claims were barred by
sovereign immunity. The August 24, 2009 action is not
the subject of this appeal.
On September 8, 2009, the plaintiff filed a claim6 with
the Claims Commissioner, requesting permission to sue
the state. In his claim, the plaintiff alleged: (1) overbil-
ling by state marshals in violation of General Statutes
§ 52-70;7 (2) mail fraud in violation of 18 U.S.C. § 1341
et seq.; (3) violation of the Racketeer Influenced and
Corrupt Organizations Act (RICO), 18 U.S.C. § 1961 et
seq.; and (4) violations of due process and equal protec-
tion by various state actors.8
The state filed a motion to dismiss, arguing, inter
alia, that the Claims Commission lacked subject matter
jurisdiction because the claim presented by the plaintiff
was untimely. On May 3, 2010, the plaintiff filed an
objection to the motion to dismiss, and included a ‘‘chro-
nology of events’’ in support of his opposition. The
Claims Commissioner issued a memorandum of deci-
sion on May 21, 2010. He noted that the plaintiff alleged
that he had been overbilled by state marshals on two
separate occasions and that these improper actions
occurred in or about August, 2007. Relying on General
Statutes § 4-148 (a),9 the Claims Commissioner deter-
mined that the plaintiff’s claim was untimely, and there-
fore he lacked subject matter jurisdiction and dismissed
the entire claim. See General Statutes § 4-158 (a) (1).
In accordance with § 4-158 (b), the plaintiff asked
the General Assembly to review the decision of the
Claims Commissioner dismissing the claim. On June 8,
2011, the General Assembly issued a Substitute Joint
Resolution No. 34 (resolution) vacating the decision of
the Claims Commissioner and authorizing the plaintiff
‘‘to institute and prosecute to final judgment an action
against the state to recover damages as compensation
for injury to person or damage to property, or both,
allegedly suffered by the [plaintiff] as set forth in said
claim. Such action shall be brought not later than one
year from the date of the final adoption by the General
Assembly of this resolution.’’
The plaintiff then commenced the present action with
a six count complaint, alleging: (1) violations of 42
U.S.C. § 198310 by the defendants; (2) conduct by the
Office of the Attorney General, the Office of the State’s
Attorney, the State Marshal Commission, Gagnon and
Bennett that constituted negligent infliction of emo-
tional distress; (3) that the conduct of Gagnon and Ben-
nett violated the federal RICO statute and the state
Corrupt Organizations and Racketeering Activity Act
(CORA), General Statutes § 53-395; (4) that the conduct
of Gagnon and Bennett violated the Connecticut Unfair
Trade Practices Act (CUTPA), General Statutes § 42-
110a et seq.; (5) that the conduct of the attorney gener-
al’s office, the state’s attorney’s office and the State
Marshal Commission constituted vexatious litigation in
violation of General Statutes § 52-568; and (6) that the
plaintiff was entitled to injunctive relief against the
State Marshal Commission. The plaintiff sought mone-
tary damages in counts one through five, and injunctive
relief in count six.
Pursuant to Practice Book §§ 10-3011 and 10-31, the
defendants moved to dismiss the entire complaint filed
by the plaintiff. Specifically, the defendants argued that
the court lacked subject matter jurisdiction on the basis
of sovereign immunity, absolute immunity and the
plaintiff’s lack of standing.12 After hearing argument,
the court issued a memorandum of decision granting
the defendants’ motion and dismissed the plaintiff’s
complaint. The plaintiff filed a motion to reargue, which
the court denied. This appeal followed.
Before addressing the specifics of the plaintiff’s
claims on appeal, we set forth the legal principles
regarding a motion to dismiss. ‘‘The standard of review
for a court’s decision on a motion to dismiss is well
settled. A motion to dismiss tests, inter alia, whether,
on the face of the record, the court is without jurisdic-
tion. . . . [O]ur review of the court’s ultimate legal con-
clusion and resulting [determination] of the motion to
dismiss will be de novo. . . . 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, construing 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.’’ (Internal quotation marks omitted.) Gold v.
Rowland, 296 Conn. 186, 200–201, 994 A.2d 106 (2010);
Bagg v. Thompson, 114 Conn. App. 30, 37–38, 968 A.2d
468 (2009).
I
The plaintiff first claims that the court improperly
determined the scope of the legislative waiver of sover-
eign immunity. The defendants counter that the trial
court properly concluded that the resolution of the Gen-
eral Assembly waived sovereign immunity only for the
causes of actions that had been raised before the Claims
Commissioner and that any other actions are barred by
sovereign immunity. Specifically, the defendants main-
tain that the court properly dismissed (1) aspects of
count one regarding the actions and omissions of Attor-
ney General George Jepsen, Assistant Attorney General
Philip Miller and the State Marshal Commission,13 (2)
count two, negligent infliction of emotional distress,
(3) count four, CUTPA violations, and (4) count five,
vexatious litigation. We conclude that the trial court
properly granted the motion to dismiss with respect to
these causes of action.
As an initial matter, we set forth the relevant legal
principles regarding sovereign immunity.14 ‘‘Sovereign
immunity relates to a court’s subject matter jurisdiction
over a case, and therefore presents a question of law
over which we exercise de novo review. . . . In so
doing, we must decide whether [the trial court’s] con-
clusions are legally and logically correct and find sup-
port in the facts that appear in the record. . . . The
principle that the state cannot be sued without its con-
sent, or sovereign immunity, is well established under
our case law. . . . It has deep roots in this state and
our legal system in general, finding its origin in ancient
common law. . . . Not only have we recognized the
state’s immunity as an entity, but [w]e have also recog-
nized that because the state can act only through its
officers and agents, a suit against a state officer con-
cerning a matter in which the officer represents the
state is, in effect, against the state. . . . Exceptions to
this doctrine are few and narrowly construed under our
jurisprudence. . . .
‘‘[T]he sovereign immunity enjoyed by the state is
not absolute. There are [three] exceptions: (1) when the
legislature, either expressly or by force of a necessary
implication, statutorily waives the state’s sovereign
immunity . . . (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 . . . and (3) when an
action seeks declaratory or injunctive relief on the basis
of a substantial allegation of wrongful conduct to pro-
mote an illegal purpose in excess of the officer’s statu-
tory authority. . . . For a claim made pursuant to the
first exception, this court has recognized the well estab-
lished principle that statutes in derogation of sovereign
immunity should be strictly construed. . . . Where
there is any doubt about their meaning or intent they
are given the effect which makes the least rather than
the most change in sovereign immunity. . . . In the
absence of a proper factual basis in the complaint to
support the applicability of these exceptions, the grant-
ing of a motion to dismiss on sovereign immunity
grounds is proper.’’ (Internal quotation marks omitted.)
Paragon Construction Co. v. Dept. of Public Works, 130
Conn. App. 211, 221–22, 23 A.3d 732 (2011); see also
Markley v. Dept. of Public Utility Control, 301 Conn.
56, 65–66, 23 A.3d 668 (2011); Bacon Construction Co.
v. Dept. of Public Works, 294 Conn. 695, 706, 987 A.2d
348 (2010).
A brief discussion of the procedure that a claimant
must follow to obtain permission to sue the state for
monetary damages will facilitate our analysis. Our
Supreme Court expressly has stated that a plaintiff seek-
ing monetary damages against the state must first obtain
authorization from the Claims Commissioner. Miller v.
Egan, 265 Conn. 301, 317, 828 A.2d 549 (2003). The
Claims Commission is required by statute to make a
record of each claim. General Statutes § 4-153. The
Claims Commissioner may deny or dismiss the claim,
order immediate payment of a claim not exceeding
$20,000, recommend to the General Assembly payment
of a claim exceeding $20,000 or grant permission to sue
the state.15 See General Statutes §§ 4-158 (a) and 4-
160 (a). A claimant 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).
Pursuant to General Statutes § 4-147,16 the plaintiff
filed notice of his claim with the Claims Commissioner
on September 8, 2009. The plaintiff also sent the Claims
Commissioner a copy of a letter that he had written to
Blumenthal, regarding the plaintiff’s intention to seek
legal recourse against the state on the following bases:
(1) overbilling by state marshals, (2) mail fraud by state
marshals in violation of federal law, (3) violation of
RICO, (4) violation of Connecticut and federal due pro-
cess and equal protection rights and, (5) conspiracy.
As a remedy, the plaintiff sought monetary damages in
excess of $15,000, interest and costs, equitable relief
and permission to sue the state. The Claims Commis-
sion granted the defendants’ motion and dismissed the
plaintiff’s claim. The plaintiff successfully obtained a
legislative reversal of the decision of the Claims Com-
missioner. The joint resolution of the General Assembly
provided: ‘‘That the decision of the Claims Commis-
sioner . . . ordering the dismissal of the claim against
the state in excess of seven thousand five hundred
dollars of [the plaintiff], is vacated and the claimant is
authorized to institute and prosecute to final judgment
an action against the state to recover damages as com-
pensation for injury to person and damage to property,
or both, allegedly suffered by the claimant as set forth
in said claim. Such action shall be brought not later
than one year from the date of the final adoption by
the General Assembly of this resolution.’’ (Emphasis
added.)
The plaintiff then commenced this action, and in his
operative complaint set forth the following causes of
action: (1) violations of 42 U.S.C. § 1983 by various state
actors, (2) negligent infliction of emotional distress by
various state actors, (3) RICO and CORA violations by
state marshals, (4) CUTPA violations by Bennett and
Gagnon, (5) vexatious litigation against the attorney
general’s office and the State Marshal Commission for
raising groundless or vexatious defenses in various pro-
ceedings, and (6) injunctive relief.
The trial court concluded that the resolution of the
General Assembly authorizing the plaintiff to bring his
lawsuit against the state was a waiver of sovereign
immunity and therefore was to be construed narrowly.
It then determined that there was nothing in the plain-
tiff’s initial claim to the Claims Commissioner that
would support the distinct legal elements for the causes
of action of negligent infliction of emotional distress,
violations of CUTPA and vexatious litigation, as well
as the specific § 1983 claims against the attorneys gen-
eral and the State Marshal Commission. We agree with
the analysis of the trial court.
The doctrine of sovereign immunity provides a strong
presumption that the state is immune from suit or liabil-
ity. Hicks v. State, 297 Conn. 798, 801, 1 A.3d 39 (2010).
Although the legislature is statutorily authorized to
waive sovereign immunity by vacating a denial of per-
mission to sue from the Claims Commissioner, that did
not occur in the present case with respect to the § 1983
claims against the attorneys general17 and the State Mar-
shal Commission for failing to comply with a formal
written opinion by the Office of the Attorney General,
the negligent infliction of emotional distress, CUTPA
and vexatious litigation claims found in portions of
count one, and all of counts two, four and five of the
plaintiff’s complaint.
The language of the joint resolution expressly waived
sovereign immunity only for the claim presented to
the Claims Commissioner. The causes of action in the
subsequent complaint discussed in this part of our opin-
ion were not included in the proceedings before the
Claims Commission and never were addressed or con-
sidered by the General Assembly. Instead, the plaintiff
first raised these particular legal theories in this com-
plaint. Moreover, our review of the materials before the
Claims Commission, and then the General Assembly,
reveals no allegation that would support the elements
of these distinct causes of action. For example, the
elements for negligent infliction of emotional distress
are: ‘‘(1) the defendant’s conduct created an unreason-
able risk of causing the plaintiff emotional distress; (2)
the plaintiff’s distress was foreseeable; (3) the emo-
tional distress was severe enough that it might result
in illness or bodily harm; and (4) the defendant’s con-
duct was the cause of the plaintiff’s distress.’’ Carrol
v. Allstate Ins. Co., 262 Conn. 433, 444, 815 A.2d 119
(2003).18 The materials submitted by the plaintiff to the
Claims Commissioner contain nothing to indicate that
these elements were presented to the General Assem-
bly. We note that § 4-147 provides in relevant part that
the notice to the Claims Commissioner ‘‘shall be for
informational purposes only and shall not be subject
to any formal or technical requirements, except as may
be necessary for clarity of presentation and facility of
understanding.’’ (Emphasis added.) While the plaintiff
was not required to set forth a formal declaration of
the particular causes of action he sought to bring against
the state, he needed to include information that would
clarify the nature of the waiver sought and ensure that
the Claims Commissioner, and subsequently the Gen-
eral Assembly which, reviewed the action of the Claims
Commissioner, would have an understanding of the
nature of that waiver. See, e.g., Burgess v. State, 50
Conn. Supp. 271, 281–82, 920 A.2d 383 (2007) (where
claimant raised allegations of wilful and malicious
behavior and negligence, but failed to include any men-
tion of nuisance before Claims Commissioner, and Gen-
eral Assembly did not mention that cause of action in
its resolution, there was no basis to conclude General
Assembly had waived sovereign immunity for that par-
ticular cause of action, and court described nuisance
allegations as afterthoughts of counsel and subject to
granting of motion to dismiss).
Moreover, as we noted previously, our law recognizes
that statutes in derogation of sovereign immunity are
strictly construed. See, e.g., DaimlerChrysler Corp. v.
Law, 284 Conn. 701, 711, 937 A.2d 675 (2007). Where
there is any doubt about its meaning or intent, we
should give it the effect that makes the least rather than
the most change in sovereign immunity. Id., 712. We
note that the rationale of Sarges v. State, 26 Conn. Supp.
24, 209 A.2d 886 (1965), bolsters our analysis. In Sarges,
the plaintiff obtained permission to sue the state for
$20,000 in damages. Id., 25. In his lawsuit, however, the
plaintiff sought to recover $75,000. The state success-
fully prosecuted a plea in abatement on the ground that
the suit for damages was in excess of those for which
permission to sue was granted. Id. Relying on the princi-
ple of strict construction of statutes that allow lawsuits
against the state, the court reasoned that ‘‘[n]othing can
be taken by implication against the state.’’ Id., 27. It
further noted that the permission to sue the state was
related to the $20,000 requested and that ‘‘[s]uch autho-
rization was no carte blanche authority to the plaintiff
to sue for any amount that he might choose.’’ (Emphasis
added.) Id., 28; see also 184 Windsor Ave., LLC v. State,
Superior Court, judicial district of Hartford, Docket No.
CV-03-4018076 (May 16, 2008) (concluding that claim
for damages could not exceed amount sought in notice
of claim to Claims Commissioner); Calvert v. State,
Superior Court, judicial district of New London at Nor-
wich, Docket No. 105317 (March 10, 1995) (14 Conn.
L. Rptr. 110) (same); cf. Merly v. State, 211 Conn. 199,
211, 558 A.2d 977 (1989) (General Assembly rejected
Claims Commissioner’s recommendation that no award
should be made on plaintiff’s claim, but that did not
imply legislative grant of authority to sue state).
We agree with the trial court that the General Assem-
bly never waived sovereign immunity with respect to
these causes of action. Absent such a waiver, the gen-
eral presumption applies, and the defendants are enti-
tled to sovereign immunity. See, e.g., Chief Information
Officer v. Computers Plus Center, Inc., 310 Conn. 60,
91, 74 A.3d 1242 (2013); Lagassey v. State, 268 Conn.
723, 732, 846 A.2d 831 (2004). We conclude, therefore,
that the court properly granted the motion to dismiss
with respect to the part of count one regarding the
§ 1983 allegations against the attorneys general and the
State Marshal Commission for refusing to comply with
a formal written opinion from the Office of the Attorney
General, the count alleging negligent infliction of emo-
tional distress (count two), the count alleging CUTPA
violations (count four), and the count alleging vexatious
litigation (count five).
II
The plaintiff next claims that the court improperly
concluded that the resolution of the General Assembly
was an unconstitutional public emolument with respect
to his remaining § 1983 allegations against Gagnon, Ben-
nett and the State Marshal Commission19 in count one
and the count alleging federal RICO and state CORA
violations (count three). The defendants counter20 that
the resolution did not contain a statement of public
purpose and benefited only the plaintiff, and therefore
the court properly determined that it violated the Con-
necticut constitution. We agree with the defendants.
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-
plaint of.’’ General Statutes § 4-148 (a).
Subsection (b) of § 4-148 provides a legislative excep-
tion to the time frame for obtaining a waiver of sover-
eign 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). In
the present case, the trial court determined that the
plaintiff’s § 1983 claims, other than those against the
attorneys general and the State Marshal Commission,
and his claims that Bennett and Gagnon violated the
RICO and CORA statutes were untimely pursuant to § 4-
148 (a). The court further determined that the resolution
purporting to waive the untimely portion of his claim
constituted an unconstitutional public emolument. The
plaintiff challenges both of these determinations, and
therefore our inquiry is twofold: Whether the court
properly decided that these causes of action were
untimely and, if so, whether it properly concluded that
the resolution did not serve a public purpose and there-
fore was unconstitutional. We conclude that the court
properly granted the defendants’ motion to dismiss with
respect to these counts of the plaintiff’s complaint.
A
The first question for this court is whether the trial
court properly concluded that the balance of the plain-
tiff’s § 1983 allegations against the State Marshal Com-
mission and his allegations that Bennett and Gagnon
violated the federal RICO and state CORA statutes were
untimely. As noted previously, § 4-148 (a) sets forth the
time frame in which claims must be brought to the
Claims Commissioner. In the present case, the plaintiff
sent notice to the Claims Commissioner on September
8, 2009. The court concluded that the plaintiff had
knowledge of actionable harms prior to September 8,
2008, and therefore that his claim was made outside of
the applicable statute of limitations. We agree.
A discussion of Lagassey v. State, supra, 268 Conn.
723, will facilitate our analysis. In that case, the plaintiff,
the executrix of an estate, sought to recover damages
against state employees for medical malpractice. Id.,
725. The Claims Commissioner denied the claim as
untimely, and the General Assembly subsequently
authorized her claim via a special act. Id., 725–26. The
state defendants again sought to dismiss the claim, this
time on the ground that the special act was unconstitu-
tional as an exclusive public emolument in violation of
article first, § 1, of the constitution of Connecticut. Id.,
726. In her appeal, the plaintiff argued that the claim
was not untimely because the one year statute of limita-
tions set forth in § 4-148 (a) did not accrue until she
discovered the injury in the exercise of reasonable care.
Id., 731.
In its analysis, our Supreme Court considered Gen-
eral Statutes § 52-58421 when it interpreted § 4-148 (a).
‘‘Both statutes provide that the limitation period begins
to run when a plaintiff either sustains or discovers the
injury or, in the exercise of reasonable care, should
have discovered the injury, and both statutes contain
a three year period of repose.’’ Id., 738. It then set forth
the legal standard for determining when the limitation
period commences for actions in negligence: ‘‘The limi-
tation 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. See General Statutes §§ 4-148 (a) and 52-584. 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 rea-
sonable care, should have discovered the essential ele-
ments 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.) Lagassey
v. State, supra, 268 Conn. 748–49.
In the present case, the plaintiff alleged in his com-
plaint that Gagnon received his fees between August
24, 2007, and September 14, 2007. The trial court also
examined the ‘‘chronology of events’’ submitted as part
of the plaintiff’s objection to the defendants’ motion to
dismiss that he filed with the Claims Commissioner. In
that chronology, the plaintiff stated that in May, 2008,
after examining the finances of state marshals, he deter-
mined that Gagnon never had claimed the $1329.20 in
fees that he had billed the plaintiff. The plaintiff also
noted that in May, 2008, after conducting his examina-
tion, he was aware that some state marshals ‘‘had gener-
ated additional income by illegal billing, or by claiming
they performed services which would have been impos-
sible considering the size of income claimed.’’
The trial court concluded that in May, 2008, the plain-
tiff discovered the injury and suffered actionable harm
because he had knowledge of the specific facts that
put him on notice of the nature of the injury with respect
to Gagnon, and Bennett as well. We agree with this
conclusion. Thus, the claim stemming from the alleged
overbillings by Gagnon and Bennett, which was filed
on September 8, 2009, was untimely. The same analysis
applies to the plaintiff’s remaining claims against the
State Marshal Commission. The chronology submitted
by the plaintiff, in conjunction with the files from the
various underlying legal proceedings, established his
knowledge of the events underlying the claim that the
State Marshal Commission had violated his constitu-
tional rights by dismissing his complaints against Mar-
shals Aresco and Corneroli and denying his Freedom
of Information Act request. These materials established
that the claim was not filed until after the one year
period of limitation had run.
On appeal, the plaintiff argues that, pursuant to Gen-
eral Statutes § 52-59522 and the doctrine of contra non
valentem,23 the statute of limitation should not have
begun to run. These specific arguments, however, do
not appear to have been raised before the trial court
and were not addressed in the court’s memorandum of
decision.24 We decline to consider them for the first
time on appeal. ‘‘Only in [the] most exceptional circum-
stances can and will [appellate courts] consider a claim,
constitutional or otherwise, that has not been raised and
decided in the trial court.’’ (Internal quotation marks
omitted.) New Haven v. Bonner, 272 Conn. 489, 498,
863 A.2d 680 (2005). We conclude, therefore, that the
court properly concluded that the claims against the
marshals and the State Marshal Commission were
untimely.
B
We now turn to the question of whether the resolution
passed by the General Assembly granting the plaintiff
permission to bring suit against the marshals and the
State Marshal Commission constituted an exclusive
public emolument in violation of article first, § 1, of the
Connecticut constitution.25 We agree with the trial court
that the resolution did not serve a public purpose and,
therefore, that the resolution was passed in violation
of the Connecticut constitution’s prohibition against
public emoluments.26
‘‘To prevail under article first, § 1, of our constitution,
the state must demonstrate that the sole objective of
the General Assembly is to grant personal gain or advan-
tage to an individual. . . . If, however, an enactment
serves a legitimate public purpose, then it will with-
stand 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.’’ (Citation omitted; emphasis
altered; internal quotation marks omitted.) Kelly v. Uni-
versity of Connecticut Health Center, 290 Conn. 245,
257–59, 963 A.2d 1 (2009); Chotkowski v. State, 240
Conn. 246, 259–60, 690 A.2d 368 (1997); Merly v. State,
supra, 211 Conn. 212–13.
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.’’ (Internal quotation marks omitted.) Kelly
v. University of Connecticut Health Center, supra, 290
Conn. 260. Although we are mindful of the heavy burden
assumed by those who challenge the constitutionality
of legislative actions; see id., 257; we conclude that the
court properly determined that the resolution in the
present case violated the state constitution’s prohibi-
tion against public emoluments, and correctly dis-
missed the § 1983 claim against the State Marshal
Commission contained in count one of the plaintiff’s
complaint and the claim alleging RICO and CORA viola-
tions by Bennett and Gagnon set forth in count three.
III
We now address the plaintiff’s § 1983 allegations
against Chief State’s Attorney Kevin T. Kane and State’s
Attorney Scott J. Murphy for violating his constitutional
rights by failing to prosecute the state marshals for
larceny, illegal billing and making false statements, as
set forth in count one of the complaint. The court con-
cluded that a prosecutor’s decision not to initiate prose-
cution is cloaked with absolute immunity.27 On appeal,
the plaintiff appears to argue that his claim against the
two prosecutors was timely pursuant to the continuing
course of conduct doctrine. We agree with the trial
court that this claim fails as a result of absolute immu-
nity afforded to prosecutors with respect to the decision
to not initiate prosecution.
In Imbler v. Pachtman, 424 U.S. 409, 96 S. Ct. 984,
47 L. Ed. 2d 128 (1976), the United States Supreme
Court held that a state prosecutor acting within the
scope of his duties in initiating and pursuing a criminal
prosecution is entitled to absolute immunity and is not
amenable to suit under § 1983. Id., 410. The court rea-
soned that § 1983 should be read in harmony with
existing tort principles and defenses, rather than in
derogation of them, and that the well settled common-
law immunity of a prosecutor also applies to § 1983
claims. Id., 418–24; see also Briscoe v. LaHue, 460 U.S.
325, 334, 103 S. Ct. 1108, 75 L. Ed. 2d 96 (1983).
The Supreme Court has made it clear that not all
actions of a prosecutor are entitled to such immunity,
but only those that are ‘‘intimately associated with the
judicial phase of the criminal process . . . .’’ Imbler v.
Pachtman, supra, 424 U.S. 430; see also Mangiafico v.
Blumenthal, 471 F.3d 391, 396 (2d Cir. 2006) (govern-
ment attorney entitled to absolute immunity when func-
tioning as advocate for state in way that is intimately
associated with judicial process); Dory v. Ryan, 25 F.3d
81, 83 (2d Cir. 1994) (same). ‘‘A prosecutor’s administra-
tive duties and those investigatory functions that do
not relate to an advocate’s preparation for the initiation
of a prosecution or for judicial proceedings are not
entitled to absolute immunity.’’ Buckley v. Fitzsim-
mons, 509 U.S. 259, 273, 113 S. Ct. 2606, 125 L. Ed. 2d
209 (1993). When a prosecutor provides legal advice to
the police; Burns v. Reed, 500 U.S. 478, 486, 111 S. Ct.
1934, 114 L. Ed. 2d 547 (1991); performs the investigative
role normally done by a member of the police; Buckley
v. Fitzsimmons, supra, 273; or makes comments to the
media; id., 277–78; he or she is not entitled to absolute
immunity. See also Haynesworth v. Miller, 820 F.2d
1245, 1268 (D.C. Cir. 1987) (‘‘[t]he courts have drawn
rough boundaries around the class of absolutely-immu-
nized prosecutorial activities, and have treated func-
tions such as filing charges, plea-bargaining, presenting
evidence, and negotiating parole as falling within the
protected sphere, and those such as executing search
warrants, interrogating suspects, disseminating infor-
mation to the press, and storing evidence as meriting
only qualified immunity’’ [footnotes omitted]), over-
ruled in part on other grounds by Hartman v. Moore,
547 U.S. 250, 126 S. Ct. 1695, 164 L. Ed. 2d 441 (2006).
In describing the role of a prosecutor in Connecticut,
our Supreme Court has stated: ‘‘The functions of a
state’s attorney are not purely those of an executive
officer. As a representative of the people of the state,
he is under a duty not solely to obtain convictions
but, more importantly, (1) to determine that there is
reasonable ground to proceed with a criminal charge
. . . (2) to see that impartial justice is done the guilty as
well as the innocent; and (3) to ensure that all evidence
tending to aid in the ascertaining of the truth be laid
before the court, whether it be consistent with the con-
tention of the prosecution that the accused is guilty.
. . . The state’s attorney, thus, is an officer charged
with important duties and responsibilities in the admin-
istration of justice. Such duties of a state’s attorney are
entirely consistent with judicial power as prescribed by
our constitution.’’ (Citations omitted; internal quotation
marks omitted.) Massameno v. Statewide Grievance
Committee, 234 Conn. 539, 556–57, 663 A.2d 317 (1995).
It also recognized: ‘‘It is in part due to the recognition
that prosecutors are an integral part of the judicial
system that courts have granted absolute immunity
from civil actions to prosecutors. . . . Prosecutorial
immunity derives from the immunity attached to judi-
cial proceedings. . . . Such immunity covers acts that
were performed by a prosecutor as an integral part of
the judicial process.’’ (Citations omitted; internal quota-
tion marks omitted.) Id., 567–68; see also Carrubba v.
Moskowitz, 274 Conn. 533, 541, 877 A.2d 773 (2005);
Barese v. Clark, 62 Conn. App. 58, 61, 773 A.2d 946
(2001) (‘‘Our Supreme Court, the United States Supreme
Court and the federal courts of appeal have long recog-
nized the existence of, and the need for, prosecutorial
immunity. Such immunity exists to allow prosecutors
at the state and federal level to be free to perform
their essential role in the judicial process without the
possibility of civil liability hanging over their head as
a sword of Damocles.’’).
The remaining question, therefore, is whether the
decision of Murphy and Kane not to prosecute the state
marshals is cloaked with absolute immunity. We con-
clude that it is, and therefore, the court properly granted
the motion to dismiss. As noted in Massameno v. State-
wide Grievance Committee, supra, 234 Conn. 556–57,
the determination of whether there are reasonable
grounds to proceed with a criminal charge is a duty of
a state’s attorney that is consistent with the judicial
power prescribed by the Connecticut constitution. This
function is an integral part of the judicial process, and
thus is entitled to absolute immunity. Id., 567. We also
note that the United States Court of Appeals for the
Second Circuit expressly held in the Schloss v. Bouse,
876 F.2d 287, 290 (2d Cir. 1989), that ‘‘absolute immunity
must also protect the [state] prosecutor from [42 U.S.C.
§ 1983] damages suits based on his decision not to pros-
ecute.’’ (Emphasis in original.) See also Barrett v.
United States, 798 F.2d 565, 572 (2d Cir. 1986) (federal
prosecutor entitled to absolute immunity for decision
not to prosecute); Dacey v. Dorsey, 568 F.2d 275, 276–78
(2d Cir.) (United States attorney absolutely immune
from suit alleging he failed to carry out his duties), cert.
denied, 436 U.S. 906, 98 S. Ct. 2238, 56 L. Ed. 2d 405
(1978). The Second Circuit reasoned that many, though
not all, of the reasons supporting absolute immunity for
the decision of a prosecutor to commence a prosecution
also apply when there is a decision to not prosecute.
Schloss v. Bouse, supra, 290. Applying these precedents
to the present case, we agree with the trial court that
Kane and Murphy were cloaked in absolute immunity
with respect to their decision not to prosecute the state
marshals, and therefore that the court properly granted
the motion to dismiss this cause of action.28
IV
The plaintiff’s final claim is that the court improperly
determined that he lacked standing to seek injunctive
relief29 in the form of a court order eliminating the
present marshal system and replacing it with a frame-
work described in his complaint. The court concluded
that the plaintiff had failed to allege or demonstrate
that he was likely to suffer irreparable harm in the
future as a result of improper conduct by state marshals
and that, therefore, he lacked standing to bring a claim
for injunctive relief. We agree with the trial court and
therefore conclude that it properly granted the defen-
dants’ motion to dismiss count six of the plaintiff’s com-
plaint.30
‘‘[S]tanding is the legal right to set judicial machinery
in motion. One cannot rightfully invoke the jurisdiction
of the court unless he [or she] has, in an individual or
representative capacity, some real interest in the cause
of action, or a legal or equitable right, title or interest
in the subject matter of the controversy. . . . Never-
theless, [s]tanding is not a technical rule intended to
keep aggrieved parties out of court; nor is it a test
of substantive rights. Rather it is a practical concept
designed to ensure that courts and parties are not vexed
by suits brought to vindicate nonjusticiable interests
and that judicial decisions which may affect the rights
of others are forged in hot controversy, with each view
fairly and vigorously represented. . . . If a party is
found to lack standing, the court is without subject
matter jurisdiction to determine the cause. . . . A
determination regarding a trial court’s subject matter
jurisdiction is a question of law. When . . . the trial
court draws conclusions of law, our review is plenary
and we must decide whether its conclusions are legally
and logically correct and find support in the facts that
appear in the record.’’ (Citation omitted; internal quota-
tion marks omitted.) Fairchild Heights Residents
Assn., Inc. v. Fairchild Heights, Inc., 310 Conn. 797,
820, 82 A.3d 602 (2014).
‘‘Standing requires no more than a colorable claim
of injury; a [party] ordinarily establishes . . . standing
by allegations of injury [that he or she has suffered or
is likely to suffer]. Similarly, standing exists to attempt
to vindicate arguably protected interests. . . . Stand-
ing is established by showing that the party claiming it
is authorized by statute to bring suit or is classically
aggrieved. . . . The fundamental test for determining
[classical] aggrievement encompasses a well-settled
twofold determination: first, the party claiming
aggrievement must successfully demonstrate a specific,
personal and legal interest in [the subject matter of
the challenged action], as distinguished from a general
interest, such as is the concern of all members of the
community as a whole. Second, the party claiming
aggrievement must successfully establish that this spe-
cific personal and legal interest has been specially and
injuriously affected by the [challenged action].’’ (Inter-
nal quotation marks omitted.) Wilcox v. Webster Ins.,
Inc., 294 Conn. 206, 214–15, 982 A.2d 1053 (2009);
Andross v. West Hartford, 285 Conn. 309, 322–24, 939
A.2d 1146 (2008); Connecticut Associated Builders &
Contractors v. Hartford, 251 Conn. 169, 178, 740 A.2d
813 (1999) (‘‘[t]o establish standing to raise an issue
for adjudication, a complainant must make a colorable
claim of direct injury’’).
The court concluded that the plaintiff had failed to
allege or demonstrate that he was likely to suffer irrepa-
rable harm and that he therefore lacked standing to
bring a cause of action for prospective injunctive relief.
After reviewing the plaintiff’s complaint, we agree with
the analysis and conclusion of the trial court. The plain-
tiff has failed to establish, on a prospective basis, that
he likely would be harmed as a result of illegal conduct
by state marshals. Accordingly, we conclude that the
court properly determined that the plaintiff lacked
standing to bring a claim for injunctive relief as alleged
in count six of the complaint.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The defendants are the state, former Attorney General Richard Blumen-
thal, Assistant Attorney General Philip Miller, former director of the State
Marshal Commission James Neil, the following members or former members
of the State Marshal Commission: Dennis F. Kerrigan, Marie Knudsen, Wil-
liam Cote, the Honorable William T. Cremins and Joseph Ubaldi, Chief
State’s Attorney Kevin T. Kane, State’s Attorney Scott J. Murphy and state
Marshals Albenie Gagnon and Timothy J. Bennett. The trial court noted that
Attorney General George Jepsen is listed in the plaintiff’s complaint as a
defendant, but is not listed on the summons.
2
‘‘[I]t is the established policy of the Connecticut courts to be solicitous
of pro se litigants and when it does not interfere with the rights of other
parties to construe the rules of practice liberally in favor of the pro se party.
. . . Although we allow pro se litigants some latitude, the right of self-
representation provides no attendant license not to comply with relevant
rules of procedural and substantive law. . . . This is because [a] party who,
unskilled in such matters, seeks to remedy some claimed wrong by invoking
processes which are at best technical and complicated, is very ill advised
and assumes a most difficult task. . . . Nonetheless, while the court exhibits
some degree of leniency toward a pro se appellant, it cannot entirely disre-
gard established principles of law.’’ (Citation omitted; footnote omitted;
internal quotation marks omitted.) Solomon v. Connecticut Medical Exam-
ining Board, 85 Conn. App. 854, 861–62, 859 A.2d 932 (2004), cert. denied,
273 Conn. 906, 868 A.2d 748 (2005).
3
Due to the procedural posture of this case, we are mindful that we must
‘‘take the facts to be those alleged in the complaint, including those facts
necessarily implied from the allegations, construing them in a manner most
favorable to the pleader.’’ (Internal quotation marks omitted.) Miller v. Egan,
265 Conn. 301, 305, 828 A.2d 549 (2003).
4
According to its website, the State Marshal Commission, an Executive
Branch commission, ‘‘was created by Public Act 00-99, in 2000. Chapter 78
of the Connecticut General Statutes sets forth the law covering the state
State Marshal Commission consists of eight members appointed by the
specified executive, judicial and legislative branch authorities. The term for
members is three years. There are also two Ex-Officio members of the
Commission from the State Marshals Advisory Board.
‘‘The State Marshal Commission generally meets monthly to conduct busi-
ness under its statutory mandate. The Commission implements examination
and appointment procedures as well as training for new appointees. By
statutes, regulations and policies, the Commission also is involved in many
functions, including but not limited to setting training requirements, profes-
sional standards, audit policies, disciplinary protocol, restraining order
rotations and administrative procedures for the efficient and fair operation
of the state marshal system.’’ (Emphasis added.) Department of Administra-
tive Services, ‘‘State Marshal Commission,’’ available at http://das.ct.gov/
cr1.aspx?page=107 (last visited May 6, 2014).
5
The plaintiff did not directly appeal from the judgment of the court
dismissing that August 24, 2009 action against the state. Nearly three years
later, the plaintiff filed a motion to open that judgment, which the court
denied. This court recently affirmed that judgment. See Morneau v. State,
148 Conn. App. 68, 83 A.3d 729, cert. denied, 311 Conn. 933, A.3d
(2014). The claims against Gagnon and Bennett in the August 24, 2009 action
remain pending before the Superior Court. On March 14, 2014, the court,
Young, J., entered a scheduling order that included a jury trial date of
January, 2015. See Morneau v. State, Superior Court, judicial district of New
Britain, Docket No. CV-09-5013995 (August 26, 2009), aff’d, 148 Conn. App.
68, 83 A.3d 729, cert. denied, 311 Conn. 933, A.3d (2014).
6
The term ‘‘claim’’ in this context is statutorily defined as ‘‘a petition for
the payment or refund of money by the state or for permission to sue the
state . . . .’’ General Statutes § 4-141.
7
As noted in the defendants’ brief, the plaintiff referenced General Statutes
§ 50-70. As no such statute exists, this appears to have been a scrivener’s
error. General Statutes § 52-70 provides: ‘‘Each officer serving any process
shall endorse thereon the items of his fees, with the number of miles traveled
by him. If any officer demands and receives on any civil process more
than his legal fees, he shall pay threefold the amount of all the fees demanded
to the defendant in the action in which the illegal fees were exacted, if
such fees have been paid by the defendant, otherwise to the plaintiff in
such action. The provisions of this section shall not apply to any case in
which the fees claimed to be illegal have been taxed and allowed by the
proper authority.’’ (Emphasis added.)
8
In the memorandum of decision in the present case, the trial court
explained the constitutional violations alleged by the plaintiff as follows:
‘‘[T]he state violated the plaintiff’s rights under the due process and equal
protection clauses when: (1) the State Marshal Commission dismissed the
plaintiff’s complaints against Aresco and Corneroli; (2) the State Marshal
Commission failed to provide the plaintiff with certain documents pursuant
to a [freedom of information] request; (3) various state’s attorneys refused
the plaintiff’s demand that they prosecute the marshals for billing theft; and
(4) the state continued to use Gagnon’s services.’’
9
General Statutes § 4-148 (a) provides: ‘‘Except as provided in subsection
(b) of this section, no claim shall be presented under this chapter 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 discov-
ered, provided no claim shall be presented more than three years from the
date of the act or event complained of.’’
10
Section 1983 of title 42 of the United States Code provides in relevant
part: ‘‘Every person who, under color of any statute, ordinance, regulation,
custom, or usage, or any State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen of the United States or
other person within the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws, shall be
liable to the party injured in an action at law, suit in equity, or other proper
proceeding for redress . . . .’’
11
Practice Book § 10-30 provides in relevant part: ‘‘(a) A motion to dismiss
shall be used to assert: (1) lack of jurisdiction over the subject matter . . . .
(c) This motion shall always be filed with a supporting memorandum of law
and, where appropriate, with supporting affidavits as to facts not apparent on
the record.’’
12
The plaintiff filed a ‘‘motion to strike’’ the defendants’ motion to dismiss.
The court considered this as an objection to the motion to dismiss. See,
e.g., Young v. Bridgeport, 135 Conn. App. 699, 705, 42 A.3d 514 (2012)
(substance of motion controls its outcome rather than title used by party);
Ocwen Federal Bank, FSB v. Charles, 95 Conn. App. 315, 320 n.7, 898 A.2d
197 (same), cert. denied, 279 Conn. 909, 902 A.2d 1069 (2006).
13
The trial court concluded that ‘‘[t]his also applies to certain allegations
set forth in count one against the attorney general and the assistant attorney
general for their alleged failure to bring a civil action against the marshals,
as well as the allegation that the State Marshal Commission refused to
comply with a former written opinion from the Office of the Attorney Gen-
eral. These allegations were not mentioned in the initial notice of claim and
are therefore dismissed.’’
14
‘‘The source of sovereign immunity power in the state of Connecticut
is the constitution, and it is recognized that a sovereign is immune from
suit 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.) Lipwich v. Frankel, 44 Conn. App. 651,
656, 691 A.2d 1099 (quoting Horton v. Meskill, 172 Conn. 615, 623, 376 A.2d
359 [1977]), cert. denied, 241 Conn. 907, 695 A.2d 538 (1997).
15
General Statutes § 4-160 (c) provides: ‘‘In each action authorized by the
Claims Commissioner pursuant to subsection (a) or (b) of this section or
by the General Assembly pursuant to section 4-159 or 4-159a, the claimant
shall allege such authorization and the date on which it was granted, except
that evidence of such authorization shall not be admissible in such action
as evidence of the state’s liability. The state waives its immunity from
liability and from suit in each such action and waives all defenses which
might arise from the eleemosynary or governmental nature of the activity
complained of. The rights and liability of the state in each such action shall
be coextensive with and shall equal the rights and liability of private persons
in like circumstances.’’ (Emphasis added.)
16
General Statutes § 4-147 provides in relevant part: ‘‘Any person wishing
to present a claim against the state shall file with the Office of the Claims
Commissioner a notice of claim, in duplicate, containing the following infor-
mation: (1) The name and address of the claimant; the name and address
of his principal, if the claimant is acting in a representative capacity, and
the name and address of his attorney, if the claimant is so represented; (2)
a concise statement of the basis of the claim, including the date, time, place
and circumstances of the act or event complained of; (3) a statement of the
amount requested; and (4) a request for permission to sue the state, if such
permission is sought. A notice of claim, if sent by mail, shall be deemed to
have been filed with the Office of the Claims Commissioner on the date
such notice of claim is postmarked. . . . The Office of the Claims Commis-
sioner shall promptly deliver a copy of the notice of claim to the Attorney
General. Such notice shall be for informational purposes only and shall
not be subject to any formal or technical requirements, except as may be
necessary for clarity of presentation and facility of understanding.’’
17
In paragraph 8 of the first count of his complaint, the plaintiff alleged
that the attorneys general failed to perform their preexisting legal duties
and failed to suppress criminally operated businesses by not enforcing the
CUTPA or civil RICO statutes. In paragraph 9 of the first count, the plaintiff
claimed that he was damaged financially by the failure of the attorney
general’s office to perform those duties and, thus, his state and federal
constitutional rights to due process and equal protection were violated. In
paragraph 10 of the first count, the plaintiff asserted that Miller engaged in
wilful misconduct, and in paragraph 11, he claimed that Miller’s filing of
motions in the underlying proceedings constituted a violation of rule 3.3
(c) of the Rules of Professional Conduct.
18
Additionally, the plaintiff’s claim to the Claims Commission does not
encompass or support his later allegations that the attorneys general or the
State Marshal Commission violated his rights under § 1983, that state actors
violated CUTPA to his detriment, or that the attorney general’s office or
the State Marshal Commission engaged in vexatious litigation against the
defendant.
19
The plaintiff had alleged that the State Marshal Commission violated
his constitutional rights by dismissing his complaints against Aresco and
Corneroli and denying his request made pursuant to the Freedom of Informa-
tion Act.
20
The defendants also contend that the resolution does not validly waive
sovereign immunity because it does not comply with the requirements of
§ 4-148 (b). That statute provides: ‘‘The General Assembly may, by special
act, authorize a person to present a claim to the Claims Commissioner after
the time limitation 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 circum-
stances and would serve a public purpose. Such finding shall not be subject
to review by the Superior Court.’’
General Statutes § 4-148 (b). Specifically, the defendants argue that ‘‘[t]he
Resolution purporting to authorize the Plaintiff’s action does not comply
with those requirements because: (1) it is not a special act of the Legislature;
(2) it does not include an express finding that such authorization is supported
by compelling equitable circumstances and would serve a public purpose;
and (3) it authorized direct suit in the Superior Court instead of permitting
Plaintiff to proceed with his claims before the Claims Commissioner.’’
In its memorandum of decision, the court noted that ‘‘[i]n regard to the
defendants’ . . . two arguments [regarding the use of a special act rather
than a resolution and authorizing suit in the Superior Court], case law is
demonstrably unclear as to whether the General Assembly must state its
findings specifically in a ‘special act’ and whether the General Assembly
has authority to allow claims to be submitted directly to the Superior Court.’’
Rather than deciding the case on these bases, the court instead focused on
the constitutionality of the resolution under the public emolument analysis.
We follow the path taken by the trial court with respect to this issue.
21
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 or the act or omission complained of . . . .’’
22
General Statutes § 52-595 provides: ‘‘If any person, liable to an action
by another, fraudulently conceals from him the existence of the cause of
such action, such cause of action shall be deemed to accrue against such
person so liable therefor at the time when the person entitled to sue thereon
first discovers its existence.’’
23
Contra non valentem is a judicially created doctrine that, inter alia,
appears to be analogous to the doctrine codified in § 52-595. See, e.g.,
Rajnowski v. St. Patrick’s Hospital, 564 So. 2d 671, 674 (La. 1990). Our
research does not reveal any Connecticut case citing to this doctrine.
24
The trial court did consider and reject the plaintiff’s argument that
the continuing course of conduct doctrine tolled the statute of limitations.
Specifically, the court concluded that the plaintiff had not established that
there was an ongoing duty or a special relationship between the plaintiff
and the defendants.
25
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 com-
munity.’’
26
In his brief, the plaintiff suggests that the court was biased when it
abused its discretion in concluding that the joint resolution constituted a
public emolument. He further claims to provide five examples of bias or
malice since commencing this action and that ten unnamed members of
the Connecticut Bar Association have violated law, the Rules of Professional
Conduct or judicial canons for the purpose of vexing and troubling his
lawsuit. Although we consider a claim of judicial bias to be of a serious
nature, it must be presented properly to both the trial court and this court.
These references fail to demonstrate how they were raised before and
addressed by the trial court. See Lynn v. Lynn, 145 Conn. App. 33, 37–38,
74 A.3d 506 (2013). We therefore decline to consider this claim. See Antogio-
vanni v. America’s Homes & Communities Real Estate, LLC, 130 Conn.
App. 286, 290 n.4, 22 A.3d 706, cert. denied, 302 Conn. 939, 28 A.3d 993 (2011).
27
‘‘Judges are granted absolute immunity from liability for acts taken
pursuant to their judicial power and authority. . . . The concern for the
integrity of the judicial process underlying the absolute immunity of judges
also is reflected in the extension of absolute immunity to certain others
who perform functions closely associated with the judicial process. . . .
Included among these other are prosecutors, administrative law judges and
hearing examiners, grand jurors and witnesses in judicial proceedings.’’
(Citations omitted; internal quotation marks omitted.) Oliva v. Heller, 839
F.2d 37, 39 (2d Cir. 1988).
28
As a result of our conclusion that the actions of Kane and Murphy are
entitled to absolute immunity, we need not address the plaintiff’s contentions
regarding the merits or timeliness of his claims against the two prosecutors.
29
Our Supreme Court has stated that ‘‘[i]njunctive relief is appropriate
only where two conditions are met: the plaintiff must allege and prove that
absent such relief he will suffer irreparable injury; and he must allege and
demonstrate that he has no adequate remedy at law.’’ Connecticut Mobile
Home Assn., Inc. v. Jensen’s, Inc., 178 Conn. 586, 592, 424 A.2d 285 (1979);
see also Advest, Inc. v. Wachtel, 235 Conn. 559, 562–63, 668 A.2d 367 (1995).
30
‘‘The issue of standing implicates subject matter jurisdiction and is
therefore a basis for granting a motion to dismiss. Practice Book § 10-31
(a).’’ (Internal quotation marks omitted.) Wilcox v. Webster Ins., Inc., 294
Conn. 206, 213–14, 982 A.2d 1053 (2009).