Flanagan v. Blumenthal

• Decision Date: 12 August 2003
• Docket Number: (SC 16634)
• Citation: Flanagan v. Blumenthal, 265 Conn. 350, 828 A.2d 572 (Conn. 2003)
• Court: Connecticut Supreme Court
• Parties: ROBERT C. FLANAGAN v. RICHARD BLUMENTHAL ET AL.

265 Conn. 350

828 A.2d 572

ROBERT C. FLANAGAN v.RICHARD BLUMENTHAL ET AL.

(SC 16634)

Supreme Court of Connecticut.

Argued April 16, 2002.

Officially released August 12, 2003.

Sullivan, C.J., and Borden, Katz, Zarella and Lavery, Js.¹Gregory T. D'Auria, associate attorney general, with whom were Jane R. Rosenberg and Eliot D. Prescott, assistant attorneys general, and, on the brief, Richard Blumenthal,attorney general, for the appellants(defendants).

Matthew E. Frechette, with whom was Roger J. Frechette, for the appellee(plaintiff).

Opinion

BORDEN, J.

The defendants, Attorney GeneralRichard Blumenthal and the state of Connecticut, appeal² from the judgment of the trial court denying their motion to dismiss, on the ground of sovereign immunity, the claim of the plaintiff, Robert C. Flanagan, a former Superior Court judge, seeking reimbursement, pursuant to General Statutes § 5-141d,³ for legal fees and expenses he had incurred while defending against a civil rights action filed against him by another state employee.⁴The dispositive issue in this appeal is whether the trial court improperly determined that § 5-141d constitutes a waiver by the state of its sovereign immunity.⁵We conclude, pursuant to our recent holding in St. George v. Gordon,264 Conn. 538, 551, 825 A.2d 90(2003), that § 5-141d waives the state's immunity from liability but does not waive the state's immunity from suit.Accordingly, we reverse the judgment of the trial court denying the defendants' motion to dismiss the action on the ground of sovereign immunity.

The plaintiff brought this action against the defendants for indemnification pursuant to § 5-141d.The defendants moved to dismiss the action on the ground of sovereign immunity.The trial court denied the motion to dismiss.

The record reveals the following facts and procedural history.On March 14, 1996, Penny Ross, now known as Penny Ross-Tackach, a court reporter for the state judicial branch, filed a complaint with the commission on human rights and opportunities (commission) against the plaintiff and the judicial branch.In her complaint, Ross-Tackach alleged that the plaintiff had violated her civil rights under state and federal law by using his position of authority to coerce her into having a sexual relationship with him.

Ross-Tackach also filed a complaint, pursuant to General Statutes § 51-51l, with the judicial review council (review council) making substantially similar allegations against the plaintiff.The review council ultimately determined that the allegations of coercion were unfounded.Nevertheless, the review council concluded that the plaintiff had violated canons 1 and 2A of the Code of Judicial Conduct because he had engaged in a consensual sexual relationship with Ross-Tackach, a married court employee, a fact to which the plaintiff had testified before the review council.Accordingly, the review council determined that the plaintiff should be censured publicly.The plaintiff appealed from the review council's decision to this court claiming, inter alia, that "as a matter of law, it is not a violation of [canons 1 or 2A of the Code of Judicial Conduct] for a judge to have had a three and one-half year consensual affair with a married court reporter regularly assigned to his courtroom over the course of the affair."In re Flanagan,240 Conn. 157, 188, 690 A.2d 865, cert. denied, 522 U.S. 865, 118 S. Ct. 172, 139 L. Ed. 2d 114(1997).We affirmed the review council's decision, concluding that "this was not purely personal conduct, because it took place with a person with whom [the plaintiff] had an ongoing, daily professional relationship" and because "the risk of injury to public confidence in the integrity of the judiciary is substantially heightened in this instance as opposed to a case where the affair was with a person unconnected with his daily activities as a judge of the Superior Court."Id., 191.

After Ross-Tackach filed her complaint with the commission, the plaintiff requested that the defendants indemnify and defend him pursuant to § 5-141d.⁶The attorney general's office notified the plaintiff that it had "determined that the allegations regarding a sexual relationship between [Ross-Tackach] and [the plaintiff] certainly do not involve allegations concerning conduct taken `in the discharge of his duties or within the scope of his employment' within the meaning of ... § 5-141d such as to entitle [the plaintiff] to representation and indemnification by the state."Accordingly, the defendants denied the plaintiff's request.

Thereafter, the plaintiff filed an action against the defendants in the United States District Court for the District of Connecticut, alleging that the defendants' refusal to indemnify and represent him had denied him due process under the United States constitution and had violated state law.The defendants moved to dismiss the plaintiff's action.The District Court dismissed, on sovereign immunity grounds, the plaintiff's federal due process claim seeking damages for the defendants' failure to indemnify him.Flanagan v. Blumenthal, United States District Court, Docket No. 3:98CV148(D. Conn.November 22, 1999).The District Court also dismissed the plaintiff's due process claim seeking injunctive relief for the defendants' failure to represent him, after concluding that the plaintiff had failed to establish a cognizable property interest because he had not alleged sufficient facts to demonstrate that he had been acting within the scope of his employment, as required under § 5-141d.Id.After reviewing Connecticut law, the allegations in the complaint, and this court's decision in In re Flanagan, the District Court further determined that the plaintiff's consensual sexual relationship "could not, as a matter of law, possibly be within the scope of [his] employment...."Id.In light of its determinations with respect to the plaintiff's federal constitutional claims, the District Court declined to exercise supplemental jurisdiction over the plaintiff's state law claims.Id.Accordingly, the District Court granted the defendants' motion to dismiss the plaintiff's claim.⁷Id.

Subsequently, after receiving a notice of the right to sue from the federal Equal Employment Opportunity Commission, Ross-Tackach filed an action against the plaintiff and the judicial branch in the United States District Court for the District of Connecticut, alleging violations of her civil rights.Thereafter, pursuant to a stipulation entered into by the parties, the District Court dismissed that action with prejudice.Tackach v. Flanagan, United States District Court, DocketNo. 300CV022357(D. Conn.April 25, 2001).

The plaintiff then filed the present action seeking damages, fees and costs in the Superior Court, alleging that the defendants' failure to indemnify and defend him violated § 5-141d, as well as General Statutes §§ 4-141and4-165, and article first, §§ 8and20, of the Connecticut constitution.⁸The defendants again moved to dismiss, claiming that, under the doctrine of sovereign immunity, the trial court lacked subject matter jurisdiction.The trial court denied the defendants' motion to dismiss, relying in part on Martinez v. Dept. of Public Safety,Superior Court, judicial district of Fairfield at Bridgeport, DocketNo. CV00377191(December 22, 2000)(28 Conn. L. Rptr. 569), a case in which the Superior Court had rejected a claim of sovereign immunity based on a statute similar to § 5-141d.This appeal by the defendants followed.⁹

We subsequently affirmed the trial court's judgment.Martinez v. Dept. of Public Safety,258 Conn. 680, 784 A.2d 347(2001)(Martinez I).Thereafter, we granted the motion for rehearing en banc filed by the defendant in that case.In Martinez v. Dept. of Public Safety,263 Conn. 74, 76, 818 A.2d 758(2003)(Martinez II), this court concluded that General Statutes(Rev. to 2003)§ 53-39a,¹⁰ which was at issue in that case, waived the state's immunity from liability but did not waive the state's immunity from suit.Accordingly, the en banc rehearing of Martinez II resulted in reversal of the trial court's decision.Id., 88.

The defendants claim that the plaintiff's action is barred by the doctrine of sovereign immunity.We agree.Subsequent to Martinez II, and most recently, this court decided St. George v. Gordon,supra, 264 Conn. 538, in which we applied Martinez II to a claim for indemnity brought pursuant to § 5-141d, the same statute on which the plaintiff relies in the present case.In St. George,we reaffirmed our analysis in Martinez II regarding when a statute would be held to have waived sovereign immunity from suit, and we held that § 5-141d was not such a statute.Id., 551-53.In that case, we also considered the effect of No. 03-97, § 2, of the 2003 Public Acts on § 5-141d, and we concluded that, although that recently enacted legislation was intended to clarify the legislative intent regarding General Statutes(Rev. to 2003)§ 53-39a, the statute involved in Martinez II, it did not affect § 5-141d. Id., 551-52 n.13.It is clear that St. George controls the present case, and that, therefore, the plaintiff's claim is barred by the doctrine of sovereign immunity.¹¹

The judgment is reversed and the case is remanded to the trial court with direction to render judgment dismissing the plaintiff's complaint.

In this opinion ZARELLA and LAVERY, Js., concurred.

SULLIVAN, C.J., concurring.

I concur with the result reached by the majority, based on this court's decision in St. George v. Gordon,264 Conn. 538, 825 A.2d 90(2003), that, in enacting General Statutes § 5-141d, the legislature waived the state's immunity from liability but did not waive the state's immunity from suit.Because sovereign immunity acts as an absolute bar to suit, even the most meritorious claims against the state must be dismissed if immunity from suit has not been waived.In my view, that is the case h...