Doe v. State

• Decision Date: 31 July 1990
• Docket Number: No. 13744,13744
• Citation: 579 A.2d 37,216 Conn. 85
• Court: Connecticut Supreme Court
• Parties: , Medicare & Medicaid Guide P 39,485 Rosie J. DOE et al. v. STATE of Connecticut et al.

Page 37

579 A.2d 37

216 Conn. 85, Medicare & Medicaid Guide P 39,485

Rosie J. DOE et al. v. STATE of Connecticut et al.

No. 13744.

Supreme Court of Connecticut.

Argued April 3, 1990.

Decided July 31, 1990.

Arnold B. Feigin, Asst. Atty. Gen. with whom were Carolyn K. Querijero, Asst. Atty. Gen. and, on the brief, Clarine Nardi Riddle, Atty. Gen. and Richard T. Couture, Asst. Atty. Gen. for appellants (defendants).

Wesley W. Horton, with whom was Susan M. Cormier, Hartford, for appellees (plaintiffs).

Before PETERS, C.J., and SHEA, CALLAHAN, GLASS and COVELLO, JJ.

CALLAHAN, Associate Justice.

The principal issue in this appeal is whether the class of indigent women represented by the named plaintiff ¹ is constitutionally entitled to an award of attorneys' fees and costs as found by the trial court. We conclude that article first, § 10 of the state constitution did not authorize the trial court to make such an award and, therefore, reverse the judgment.

This case began on August 20, 1981, when the named plaintiff and her physician brought a class action ² challenging the legality of a regulation issued by the defendant commissioner of income maintenance. ³ The regulation restricted the funding of abortions under the Connecticut Medical Assistance Program (Medicaid); General Statutes §§ 17-134a through 17-134l ; to only those abortions "necessary because the life of the mother would be endangered if the fetus were carried to term." ⁴ After a trial on the merits, the trial court, Berdon, J., on April 9, 1986, held that the regulation exceeded the statutory authority of the commissioner of income maintenance and violated the plaintiffs' right to due process under § 10 of article first of the state constitution and to equal protection of the laws under §§ 1 and 20 of that article. Doe v. Maher, 40 Conn.Sup. 394, 395, 515 A.2d 134 (1986). Accordingly, the trial court enjoined the commissioner from enforcing the regulation and ordered the defendants to pay for all medically necessary abortions ⁵ to the same extent that the defendants pay for all other medical costs under the Medicaid program. The defendants did not appeal the trial court's judgment of April 9, 1986.

After a further evidentiary proceeding pursuant to a bifurcation order, ⁶ the trial court, on June 26, 1986, awarded $164,942.83 in attorneys' fees and costs to the named plaintiff's class of indigent women. ⁷ The defendants appealed that decision to this court. In Doe v. Heintz, 204 Conn. 17, 33-34, 526 A.2d 1318 (1987), we concluded that the plaintiffs had failed to exhaust the administrative remedy available to them of first presenting their claim to the claims commissioner in accordance with General Statutes §§ 4-141 through 4-165b. We determined that because a "private party in the same position as the state in this case would not have been liable for attorneys' fees"; id., 36; any authorization to sue the state would be fruitless because the state's liability in such a suit is "coextensive" with that of a private person. General Statutes § 4-160(a). Nevertheless, we noted that if the claim had been filed with the commissioner, "the commissioner would have been empowered to consider whether the plaintiffs' demand for attorneys' fees constituted a 'just claim,' one that 'in equity and justice the state should pay....' General Statutes § 4-141." Id., 204 Conn. at 36-37, 526 A.2d 1318. Because the plaintiffs had failed to pursue this administrative remedy, we held that the trial court lacked jurisdiction to consider the merits of the issues presented. Accordingly, we concluded that the trial court should have dismissed the plaintiffs' claim for attorneys' fees and costs. We, therefore, set aside the supplemental judgment awarding the plaintiffs counsel fees and costs and remanded the case to the trial court with direction to render judgment dismissing the claim.

The date that our decision in Doe v. Heintz was released, June 9, 1987, the plaintiffs filed a notice of claim with the claims commissioner requesting the state to pay their attorneys' fees and costs "incurred to implement their right to judicial redress of injuries for violations by the state of the plaintiffs' statutory and constitutional rights." In the alternative, they sought permission from the claims commissioner to sue the state. ⁸ The defendants filed a motion to dismiss, asserting that the plaintiffs had not timely filed their claim in accordance with General Statutes § 4-148. On December 21, 1987, the claims commissioner rejected the defendants' argument, and granted the plaintiffs permission to sue the state. ⁹

The plaintiffs, thereafter, brought this action on March 17, 1988, seeking attorneys' fees and costs in the amount of $164,942.83, "incurred [while] remedying the state's violations of their constitutional rights." After a trial on the merits, on June 28, 1989, the trial court, Hodgson, J., awarded the plaintiffs attorneys' fees in the amount of $134,505.29. ¹⁰ The defendants appealed the trial court's judgment to the Appellate Court. We transferred this appeal to ourselves pursuant to Practice Book § 4023.

In appealing from the judgment rendered June 28, 1989, the defendants maintain that the trial court erred by concluding that: (1) the plaintiffs' claim was timely filed with the claims commissioner; (2) the claims commissioner had the authority to grant the plaintiffs permission to sue the state; and (3) article first, § 10 of the Connecticut constitution requires the state to pay the plaintiffs' attorneys' fees and costs.

I

On appeal, the defendants argue, as a threshold issue, that the trial court erred when it held that the plaintiffs' claim was not time-barred by General Statutes § 4-148. The following facts are relevant to this argument. On April 9, 1986, the trial court, Berdon, J., rendered a declaratory judgment that the regulation at issue was invalid because it contravened General Statutes §§ 17-134a through 17-134l and because it violated the rights of the plaintiffs under certain provisions of the Connecticut constitution. The court enjoined the commissioner from enforcing the regulation and ordered the defendants to pay the costs of all medically necessary abortions on the same basis as other claims under the Medicaid program. After the decision, the court conducted further hearings on the plaintiffs' bifurcated claim for attorneys' fees and costs. In addition, the plaintiffs' attorneys prepared a court ordered judgment file and monitored the defendants' compliance with the court's order to provide notice to each member of the class that medically necessary abortions would be paid for by Medicaid. The plaintiffs required the services of their attorneys through August 5, 1986. ¹¹

The defendants contend that the plaintiffs failed to file their claim with the claims commissioner on a timely basis in accordance with General Statutes § 4-148(a), which states in pertinent part: "No claim shall be presented under this chapter but within one year after it accrues." Because the legislature has chosen not to define the term "accrues," the defendants urge us to construe it to mean the date on which judgment was entered. They argue that because the plaintiffs failed to file their claim with the claims commissioner until June 9, 1987, more than one year after April 9, 1986, the date that judgment was entered, the claim was not timely filed. Consequently, they contend, the claims commissioner lacked jurisdiction to consider it. We need not decide that issue at this time, however, because we agree with the trial court's conclusion that the plaintiffs timely filed their claim in accordance with General Statutes § 4-148.

When the claim for attorneys' fees is based upon continuous legal representation, the statute of limitations does not begin to run until the legal services are complete. See Connell v. Colwell, 214 Conn. 242, 253, 571 A.2d 116 (1990); Gaylord Hospital v. Massaro, 5 Conn.App. 465, 467, 499 A.2d 1162 (1985); Cannell v. Bulicek, 8 Ohio App.3d 331, 335, 457 N.E.2d 891 (1983); Hart v. Day, 17 Wash.App. 407, 413, 563 P.2d 227 (1977), review denied, 89 Wash.2d 1018 (1978). The statute of limitations is tolled during the pendency of the continuous representation.

In this case, the plaintiffs are seeking attorneys' fees and costs "which were incurred to implement their right to judicial redress of injuries for violations by the state of the plaintiffs' statutory and constitutional rights." As part of that continuing legal representation, the plaintiffs' attorneys were obligated to perform services for the plaintiffs after the date judgment was entered, April 9, 1986. The plaintiffs' attorneys were ordered, by the court, to prepare a judgment file and to assist in the implementation of notice of the availability of Medicaid funds to the members of the class of indigent women in need of medically necessary abortions. Since the plaintiffs were seeking an award for attorneys' fees and costs incurred in obtaining necessary health related benefits, their claim would not fully accrue until those services were completed. See Handler v. Remington Arms Co., 144 Conn. 316, 321, 130 A.2d 793 (1957) ("[w]hen the wrong sued upon consists of a continuing course of conduct, the statute does not begin to run until that course of conduct is completed"). In order to effectuate the trial court's judgment, the plaintiffs' counsel were obligated to carry out the court's orders. Thus, the plaintiffs' claim was not ascertainable in toto until August 5, 1986. We conclude, therefore, that the trial court correctly determined that the plaintiffs had timely filed their notice of claim with the claims commissioner.

II

The defendants next contend that the doctrine of sovereign immunity bars the plaintiffs' claim for attorneys' fees. First, they argue that the claims commissioner cannot authorize lawsuits against the state in derogation of General Statutes § 4-160(a),...