Conboy v. State

Decision Date21 July 2009
Docket NumberNo. 17798.,17798.
CourtConnecticut Supreme Court
PartiesRobert CONBOY et al. v. STATE of Connecticut.

Daniel J. Klau, with whom were Joseph J. Chambers and, on the brief, Bernard E. Jacques, Allan B. Taylor and Douglas W. Bartinik, Hartford, for the appellant (defendant).

David S. Golub, with whom was Jonathan M. Levine, Stamford, for the appellees (plaintiffs).

ROGERS, C.J., and NORCOTT, VERTEFEUILLE, ZARELLA and SULLIVAN, Js.

ROGERS, C.J.

This case concerns the proper procedure for a trial court to employ in deciding a motion to dismiss for lack of subject matter jurisdiction when jurisdictional facts are disputed by the parties. This interlocutory appeal1 stems from the trial court's denial of a motion to dismiss, on the basis of sovereign immunity, a putative class action brought by the plaintiffs, four state employees,2 to recover damages from the defendant, the state of Connecticut, pursuant to General Statutes § 31-51q.3 The state claims that the court improperly denied its motion to dismiss because the actions challenged by the plaintiffs, as a matter of law, do not fall within the scope of the waiver of sovereign immunity conferred by that statute.4 The state argues specifically that public documents it submitted in conjunction with its motion to dismiss established unequivocally that the plaintiffs were not "discipline[d]" or "discharge[d]" as contemplated by § 31-51q, but rather, collectively were laid off in response to economic pressures, a policy decision it claims is exempted from the purview of the statute. Because we conclude that, at this stage of the proceedings, an unresolved factual dispute exists that renders consideration of the state's legal argument premature, we dismiss the appeal.5

The record reveals the following procedural history. The plaintiffs commenced this action on December 19, 2005. In their complaint, they alleged that they, along with 2800 other unionized state employees, were terminated from their employment with the state in January, 2003, because of their union membership and activities and their exercise of their state and federal constitutional rights, namely, freedom of speech and freedom of association. Specifically, they averred that: their union, Connecticut State Employees Association, and twelve other unions that together comprised the State Employees Bargaining Agent Coalition, were parties to various collective bargaining agreements with the state; in and after November, 2002, the state, through members of its executive branch, had sought changes to those agreements that would favor the state, particularly, concessions of existing union member rights that the unions, pursuant to statute,6 were not obligated to forfeit; more severe concessions were demanded from unionized employees than from nonunionized employees, particularly as to health and pension benefits; the state threatened to terminate the employment of union members if the sought concessions were not made; the state followed through on that threat and terminated 2800 unionized state employees, including the plaintiffs, when those concessions were not made; only unionized employees were targeted for termination; such termination was in response to the refusal of the plaintiffs and their unions to support then Governor John Rowland (governor) in his bid for reelection; the terminations were motivated by "anti-union animus and in retaliation for the unions' and union members' exercise of their [constitutional] rights" of freedom of speech and freedom of association, specifically, their participation in and support of union activities and their choice of political candidates. The plaintiffs alleged that, because of the foregoing actions of the state, they had suffered lost earnings and emotional distress and were entitled to seek relief pursuant to § 31-51q.

On July 19, 2006, the state filed a motion to dismiss the action for lack of subject matter jurisdiction. See Practice Book § § 10-30 and 10-31. The state argued that, even if an action against it was authorized by § 31-51q, the circumstances under which such an action could be brought were limited and, on the facts of this case, not present. Specifically, the state claimed, "the conduct about which [the] plaintiffs complain—a policy decision to eliminate 2800 state jobs through layoffs in the midst of a massive financial crisis— is well beyond the scope of § 31-51q because the implementation of this policy decision was not a `discharge' or `discipline' as [contemplated by] the statute...."

In support of its motion, the state did not submit to the trial court any affidavits7 or other evidence directly pertaining to the termination of the plaintiffs' employment, but instead requested that the trial court take judicial notice of facts allegedly established by certain publicly available documents. Those documents included: the parties' collective bargaining agreement; an undated report prepared for the legislature by its office of fiscal analysis regarding revisions made to the original 2001-2003 biennial state budget in response to a deficit that had arisen; an April 1, 2003 letter to the governor from Nancy Wyman, the state comptroller (comptroller);8 the governor's "Balanced Budget Plan," dated December 6, 2002, and selected portions of public acts passed during the 2003 legislative sessions to address the budget deficit.9 According to the state, the foregoing documents demonstrated conclusively that the termination of the plaintiffs' employment was a policy decision made by the governor in response to budgetary pressures and, accordingly, constituted a mass layoff,10 which is not actionable under § 31-51q.

The trial court denied the state's motion to dismiss. The court did not address directly the state's legal argument that a mass layoff cannot constitute a violation of § 31-51q. Instead, the court noted that there was a factual dispute as to the reason for the termination of the plaintiffs' employment that could not properly be resolved on a motion to dismiss, and that in deciding such a motion, it was obligated to view the allegations of the complaint most favorably to the plaintiffs.11 The court stated: "The plaintiffs have alleged that they and other union members were terminated because of their union status; the state argues that those state employees were laid off due to budgetary considerations. These claims cannot be resolved on a motion to dismiss as the factual dispute—and there is certainly a factual dispute—is not before the court on this motion. Rather, the question is whether the plaintiffs' complaint contains sufficient allegations to fall within the purview of § 31-51q; it does, and therefore the motion to dismiss is denied." This appeal followed.

The state argues that the trial court improperly denied its motion to dismiss because the action about which the plaintiffs complain—a mass layoff of 2800 workers due to economic considerations— as a matter of law does not constitute the impermissible type of discharge or discipline prohibited by § 31-51q. According to the state, the documents it cited in support of its motion to dismiss established conclusively that the plaintiffs' loss of employment, contrary to the allegations of the complaint, was part of such a layoff and, therefore, that there was no violation of § 31-51q that would trigger a waiver of sovereign immunity. The state further claims that the general context surrounding the plaintiffs' loss of employment demonstrates clearly that the plaintiffs were laid off due to a policy decision of the governor to reduce the size of the state workforce in the face of a fiscal crisis, and such a decision does not amount to discipline or discharge within the meaning of § 31-51q. We conclude that, because, on the record presented to the trial court, a factual dispute existed over the reason for the plaintiffs' loss of employment, the trial court properly declined to address the state's legal argument and denied its motion to dismiss.12

The applicable legal principles are well established. "[W]e have long recognized the validity of the commonlaw principle that the state cannot be sued without its consent...." (Internal quotation marks omitted.) Cox v. Aiken, 278 Conn. 204, 211, 897 A.2d 71 (2006). Nevertheless, a plaintiff may surmount this bar against suit if, inter alia, he can demonstrate that "the legislature, either expressly or by force of a necessary implication, statutorily waived the state's sovereign immunity...." (Internal quotation marks omitted.) Id., at 212, 897 A.2d 71. Even when there is an express statutory waiver of immunity, however, the plaintiff's complaint must allege a claim falling within the scope of that waiver. See Kozlowski v. Commissioner of Transportation, 274 Conn. 497, 502, 876 A.2d 1148 (2005); see also Federal Deposit Ins. Corp. v. Peabody, N.E., Inc., 239 Conn. 93, 101-102, 680 A.2d 1321(1996) ("[w]hen the state waives ... immunity by statute ... a party attempting to sue under the legislative exception must come clearly within its provisions" [internal quotation marks omitted]).

Lack of a statutory waiver of immunity is a jurisdictional defect properly raised by a motion to dismiss. Kelly v. University of Connecticut Health Center, 290 Conn. 245, 252, 963 A.2d 1 (2009); see also Practice Book § 10-31(a)(1). "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 court's ultimate legal conclusion and resulting [determination] of the motion to dismiss will be de novo." (Internal quotation marks omitted.) Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005). In undertaking this review, we...

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