Alexander v. COMMISSIONER OF ADMIN. SERV.

• Decision Date: 28 December 2004
• Docket Number: No. 24912.,24912.
• Citation: 86 Conn.App. 677,862 A.2d 851
• Court: Connecticut Court of Appeals
• Parties: Gary ALEXANDER et al. v. COMMISSIONER OF ADMINISTRATIVE SERVICES et al.

862 A.2d 851

86 Conn.App. 677

Gary ALEXANDER et al. v. COMMISSIONER OF ADMINISTRATIVE SERVICES et al.

No. 24912.

Appellate Court of Connecticut.

Argued October 13, 2004.

Officially released December 28, 2004.

Norman A. Pattis, with whom, on the brief, was John R. Williams, New Haven, for the appellants (plaintiffs).

Gregory T. D'Auria, Associate Attorney General, with whom, on the brief, were Richard Blumenthal, Attorney General, and Jane R. Rosenberg, Assistant Attorney General, for the appellees (defendants).

SCHALLER, DRANGINIS and PETERS, Js.

Opinion

PETERS, J.

Pursuant to General Statutes § 18-85a,¹ the state of Connecticut is authorized to assess inmates for the costs of their incarceration. To enforce this assessment, No. 01-129 of the 2001 Public Acts (now codified at § 18-85b² of the General Statutes), and § 18-85a-2³ of the Regulations of Connecticut State Agencies authorize the state to place a lien on an inheritance received by an inmate. The principal issue in this case is whether, as applied under the circumstances of this case, the statute is unconstitutional because it violates an inmate's right to equal protection of the laws. We agree with the trial court that the defendant has not alleged facts that, if proven, would establish that his constitutional rights have been impaired.

The plaintiffs, Gary Alexander (inmate) and Sallie Alexander, the executrix of the estate of Alfred Joseph Alexander (executrix), brought an action to contest the validity of a lien asserted by the defendants, the commissioner of administrative services and the commissioner of correction, on one half of the inmate's share in the Alexander estate. Pursuant to 42 U.S.C. § 1983, the plaintiffs filed suit for an injunction to prevent the defendants from seizing any of the inmate's inherited funds. In response to the judgment of the trial court granting the defendants' motion to strike the plaintiffs' original complaint, the plaintiffs filed a substitute complaint. The defendants again filed a motion to strike. The plaintiffs appeal from the judgment of the trial court striking their substitute complaint. We affirm the judgment.

The facts are undisputed. The inmate has been incarcerated for thirty years in accordance with consecutive sentences that he began serving in 1975. After the death of his father in 2001, a Probate Court ruled that the inmate's share in the father's estate was $27,800. The defendants have placed a lien of $13,900 on these inherited funds.

The plaintiffs appeal, on two grounds, from the judgment of the trial court striking their complaint. In their view, they had a right to be heard on the merits of their claims that the defendants' lien violated their rights to substantive due process and to equal protection.⁴ Because their claims raise issues of law, they are entitled to plenary review by this court. Kroll v. Steere, 60 Conn.App. 376, 384, 759 A.2d 541, cert. denied, 255 Conn. 909, 763 A.2d 1035 (2000). We are not persuaded by the plaintiffs' claims.

I SCOPE OF APPELLATE REVIEW

The scope of our review of the plaintiffs' appeal is limited by the fact that, when the trial court struck the plaintiffs' first complaint, the plaintiffs elected to file a substitute complaint rather than to take an immediate appeal. "As a general rule, [t]he filing of an amended pleading operates as a waiver of the right to claim that there was error in the sustaining of the [motion to strike] the original pleading." (Internal quotation marks omitted) Parsons v. United Technologies Corp., 243 Conn. 66, 74, 700 A.2d 655 (1997); Emerick v. Kuhn, 52 Conn.App. 724, 733, 737 A.2d 456, cert. denied, 249 Conn. 929, 738 A.2d 653, cert. denied sub nom. Emerick v. United Technologies Corp., 528 U.S. 1005, 120 S.Ct. 500, 145 L.Ed.2d 386 (1999). Accordingly, the plaintiffs are precluded from appealing from the merits of the trial court's ruling striking the claims in their substitute complaint unless the allegations set forth therein differ materially from those asserted in their original complaint. See Parsons v. United Technologies Corp., supra, at 74, 700 A.2d 655; Emerick v. Kuhn, supra, at 734, 737 A.2d 456.

Our review of the plaintiffs' appellate claims must start, therefore, with an examination of the allegations contained in their original complaint. There, they claimed that the defendants, in deciding to impose the lien, had violated their rights (1) to procedural due process, (2) under the takings clause of the fifth amendment, (3) to substantive due process and (4) under the equal protection clause of the fourteenth amendment.

In their substitute complaint, the plaintiffs set forth additional grounds in support of their prior equal protection claim. They did not, however, amend any other counts of their complaint. Indeed, at oral argument in this court, they characterized the substantive due process argument that they were continuing to pursue as an equal protection claim. We conclude, therefore, that the plaintiffs do not have the right to appeal from the court's decision to strike their claims alleging violations of procedural due process, substantive due process and the takings clause of the fifth amendment. Specifically, we will not address that part of the plaintiffs' substantive due process claim that alleged unfairness in imposing a lien on the inmate's inheritance because the lien statute was not yet in force at the time of his sentencing.⁵ See Parsons v. United Technologies Corp., supra, 243 Conn. at 74, 700 A.2d 655.

The plaintiffs' equal protection claim stands on a different footing. On that issue, the plaintiffs alleged in their original complaint that "[t]he defendants have not uniformly taxed all sentenced inmates the cost of their incarceration as permitted by the aforesaid laws and regulations, and in attempting to seize the assets of the [inmate] as aforesaid they have acted arbitrarily and irrationally and have intentionally subjected him to disparate treatment in violation of the equal protection clause of the [f]ourteenth [a]mendment." In their substitute complaint, the plaintiffs again alleged this paragraph, verbatim, as paragraph 7(A). They also, however, included new allegations in support of their equal protection claim. In particular, they asserted that:

"(C) The defendants' seizure of the [inmate's] property in this case is arbitrary, and unbounded by any discernable standard in that the defendants have no policy or procedure in place permitting them to identify which inmates have assets, and which inmates do not.

"(D) The defendants' seizure of the [inmate's] property in this case is not the result of any audit, or the product of any policy adopted or followed by the defendants.

"(E) The manner in which the defendants choose to seize property is a function of the notoriety of the inmate or the perceived need of the defendants to make a public statement about being `tough' on crime and those convicted of crime.

"(F) The decision to seize the [inmate's] property in this case is inspired by malice in that it is not the product of any systemic policy, but is, instead, a function of the defendants' political and policy objectives of appearing to be tough on crime and its consequences.

"(G) In the alternative, the decision to seize the [inmate's] property is entirely random and unguided by any discernable principle recognized by law."

In effect, the plaintiffs' substituted complaint included new allegations that transformed their previous, generic equal protection claim into a colorable claim of selective enforcement. In particular, the plaintiffs alleged that the state unfairly targeted this inmate to the exclusion of other inmates who were similarly situated. We conclude, therefore, that the additional allegations set forth in the plaintiffs' substitute complaint differ materially from the equal protection allegation contained in their original complaint. Accordingly, in this appeal, the plaintiffs are not precluded from challenging the court's ruling striking their equal protection claim from the substitute complaint.

II EQUAL PROTECTION CLAIM

We turn then to the merits of the plaintiffs' equal protection claim. The plaintiffs' argue that the substitute complaint adequately alleged an equal protection violation in its claims of difference of treatment between this inmate and other inmates. The plaintiffs further alleged that the defendants lacked a rational basis for this differential treatment. We do not agree with the plaintiffs' claim that these allegations were sufficiently fact based to withstand a motion to strike.

In effect, the plaintiffs claim that, as applied to them, § 18-85b⁶ is unconstitutional. The plaintiffs bear a heavy burden when they challenge the constitutionality of a statute. "[B]ecause a validly enacted statute carries with it a strong presumption of constitutionality, those who challenge its constitutionality must sustain the heavy burden of proving its unconstitutionality beyond a reasonable doubt.... In construing a statute, moreover, we will search for an effective and constitutional construction that reasonably accords with the legislature's underlying intent." (Internal quotation marks omitted.) State v. Rizzo, 266 Conn. 171, 291, 833 A.2d 363 (2003).

"The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution is essentially a direction that all persons similarly situated should be treated alike. City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313 (1985) (citing Plyler v. Doe, 457 U.S. 202, 216, 102 S.Ct. 2382, 2394, 72 L.Ed.2d 786 [1982] ).... Zahra v. Southold, 48 F.3d 674, 683 (2d Cir.1995). A violation of equal protection by selective [treatment] arises if: (1) the person, compared with others similarly situated, was selectively treated; and (2) ... such selective treatment was based on impermissible considerations such as race, religion, intent to...