Estate of Bochicchio v. Quinn

• Decision Date: 26 June 2012
• Docket Number: No. 32895.,32895.
• Citation: 136 Conn.App. 359,46 A.3d 239
• Parties: ESTATE OF Donna BOCHICCHIO v. Honorable Barbara QUINN et al.
• Court: Connecticut Court of Appeals

136 Conn.App. 359

46 A.3d 239

ESTATE OF Donna BOCHICCHIO

v.Honorable Barbara QUINN et al.

No. 32895.

Appellate Court of Connecticut.

Argued Nov. 29, 2011.

Decided June 26, 2012.

John R. Logan, Torrington, for the appellant (plaintiff).

Philip Miller, assistant attorney general, with whom was Thomas Davis, assistant attorney general, and, on the brief, George Jepsen, attorney general, for the appellees (defendants).

DiPENTIMA, C.J., and BEACH and BISHOP, Js.

DiPENTIMA, C.J.

The plaintiff, the estate of Donna Bochicchio through the administrator, Karl J. Seitz, appeals from the judgment of the trial court dismissing its complaint on the grounds of sovereign immunity. ¹ Specifically, the plaintiff argues that the doctrine of sovereign immunity does not apply in this case, and, therefore, the court improperly dismissed its bill of discovery.² We conclude that the plaintiff failed to exhaust its administrative remedies, and, therefore, the trial court lacked subject matter jurisdiction to consider the merits of the plaintiff's action. Accordingly, we affirm the judgment of the trial court.

Given the procedural posture of this case, we take the facts from the allegations contained in the plaintiff's complaint. See Leseberg v. O'Grady, 115 Conn.App. 18, 21, 971 A.2d 86 (“[i]n reviewing the trial court's decision to grant a motion to dismiss, we 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] ), cert. denied, 293 Conn. 913, 978 A.2d 1110 (2009). On June 14, 2010, the plaintiff commenced this action for a bill of discovery against the defendants, the Honorable Barbara Quinn and the Honorable Julia Aurigemma, both of whom are judges of the Superior Court. The genesis of this action arose out of a marital dissolution proceeding between the plaintiff's decedent, Donna Bochicchio, and Michael Bochicchio. Michael Bochicchio commenced the dissolution of marriage action in April, 2003, in the judicial district of Litchfield, and the “contentious and hotly disputed dissolution litigation was transferred to the Regional Family Trial Docket” in the judicial district of Middlesex at Middletown. In 2005, the case proceeded to trial before Judge Quinn,³ and, at that time, Judge Aurigemma served as the administrative judge in Middletown.

During the course of the Middletown proceedings, Michael Bochicchio attempted to enter the courthouse with various prohibited items, including, but not limited to, a pocket knife, a handcuff key, a tape recorder and a handgun. On June 15, 2005, Michael Bochicchio, after lying in wait in the public parking lot for the Middletown courthouse, shot and killed the plaintiff's decedent. He also shot and severely wounded the decedent's attorney, Julie Porzio. Michael Bochicchio then fatally shot himself.

Pursuant to General Statutes § 4–147, the plaintiff filed a claim with the claims commissioner (commissioner) ⁴ seeking permission to sue the state of Connecticut, pursuant to General Statutes § 4–160(a).⁵ In that action, the plaintiff claimed that individual and collective failures by judicial branch employees constituted a substantial factor in the death of its decedent.⁶ The plaintiff sought to depose the defendants in order to ascertain their knowledge of the management of the marshals at the Middletown courthouse, the security measures or lack thereof, the security breaches and attempted crimes committed by Michael Bochicchio and “their personal recollections as to their observations of ... Michael Bochicchio” during the trial proceedings.

The plaintiff noted that it would refrain from asking questions regarding the thought processes of the defendants with respect to their judicial decisions and would limit questions to factual recollections and matters pertaining to the administrative function of courthouse security. The state objected and requested that the commissioner rule on whether the deposition of the defendants would proceed. Following a discussion conducted off the record, the commissioner denied the deposition request; instead, he authorized the plaintiff to pose written interrogatories to the defendants.⁷ After detailing these allegations in its complaint seeking a bill of discovery, the plaintiff further claimed that written interrogatories were an inadequate remedy and that depositions of the defendants were material and necessary to a proper determination of its claims against the state.

Pursuant to Practice Book §§ 10–30 and 10–31, the defendants filed a motion to dismiss the complaint requesting a bill of discovery, arguing that it was barred by the doctrine of sovereign immunity.⁸ On October 28, 2010, the court issued a memorandum of decision granting the motion to dismiss. The court concluded that sovereign immunity applied because the state would be affected in three ways if the depositions of the defendants were permitted.⁹ First, the court reasoned that information obtained in the depositions potentially may be used against the state in a future action. Second, the court stated that the time needed by the defendants to prepare for and to attend the depositions would “diminish their availability to fulfill their judicial duties.” Third, the court stated that the plaintiff's bill of discovery “undermines the legislatively established method for determining claims against the state.” The court stated that the plaintiff, apparently dissatisfied with the decision of the commissioner, had attempted to appeal that decision in the Superior Court and that this tactic is not permitted under our jurisprudence. See Circle Lanes of Fairfield, Inc. v. Fay, 195 Conn. 534, 542–43, 489 A.2d 363 (1985). For these reasons, the court concluded that sovereign immunity applied and, accordingly, granted the defendants' motion to dismiss. This appeal followed.

On appeal, the plaintiff claims that the doctrine of sovereign immunity does not apply to a bill of discovery because the only relief sought is testimony, and, therefore, the state is not affected. Specifically, the plaintiff, as it did before the trial court, relies on the statement in Gold v. Rowland, 296 Conn. 186, 215, 994 A.2d 106 (2010), that “where the state will be unaffected by [a judgment in favor of the plaintiff], its consent to suit and waiver of sovereign immunity seems unnecessary.” (Emphasis in original; internal quotation marks omitted.) The plaintiff then argues that the court erroneously relied on the three grounds set forth in the memorandum of decision.

The defendants counter that the court correctly determined that the state would be affected by the plaintiff's bill of discovery, and, therefore, the doctrine of sovereign immunity applies to the bill of discovery. They further contend that the plaintiff failed to exhaust its administrative remedies, and, therefore, the trial court lacked jurisdiction to consider the merits of the plaintiff's bill of discovery. We agree with the defendants' exhaustion argument and affirm the judgment of the trial court on this alternate basis.¹⁰

We begin by setting forth certain legal principles that inform and guide our analysis. “It is a well-established rule of the common law that a state cannot be sued without its consent.... A sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends.... The practical and logical basis of the doctrine is today recognized to rest on this principle and on the hazard that the subjection of the state and federal governments to private litigation might constitute a serious interference with the performance of their functions and with their control over their respective instrumentalities, funds, and property.... We have held that a plaintiff seeking to circumvent the doctrine of sovereign immunity must show that: (1) the legislature, either expressly or by force of a necessary implication, statutorily waived the state's sovereign immunity ... or (2) in an action for declaratory or injunctive relief, the state officer or officers against whom such relief is sought acted in excess of statutory authority, or pursuant to an unconstitutional statute.” (Citation omitted; internal quotation marks omitted.) Lyon v. Jones, 291 Conn. 384, 396–97, 968 A.2d 416 (2009); see Kelly v. University of Connecticut Health Center, 290 Conn. 245, 252, 963 A.2d 1 (2009) (noting that state cannot be sued without its consent); see also Martinez v. Dept. of Public Safety, 263 Conn. 74, 78–80, 818 A.2d 758 (2003). In the present case, the plaintiff's argument is not that sovereign immunity has been waived or that the defendants have acted in excess of statutory authority or pursuant to an unconstitutional statute but, rather, that taking depositions of the defendants will not affect the state, and, therefore, the doctrine does not apply. See Gold v. Rowland, supra, 296 Conn. at 215, 994 A.2d 106.

Underlying the action in the present case, the plaintiff had filed a claim with the commissioner seeking permission to sue the state. “The legislature has provided for a claims commissioner who may, when he deems it just and equitable, authorize suit against the state. See General Statutes § 4–142.” Ayantola v. Board of Trustees of Technical Colleges, 116 Conn.App. 531, 534, 976 A.2d 784 (2009). Our Supreme Court has described the commissioner as “the gatekeeper through which [actions] against the state must pass.” (Internal quotation marks omitted.) Lyon v. Jones, supra, 291 Conn. at 401, 968 A.2d 416; see DaimlerChrysler Corp. v. Law, 284 Conn. 701, 723, 937 A.2d 675 (2007). “The claims commissioner has discretionary authority to pay or reject claims, to make recommendations to the legislature with regard to claims, and to authorize suit...