Tuchman v. State, (AC 24792).

• Decision Date: 24 June 2005
• Docket Number: (AC 24792).
• Citation: 89 Conn. App. 745,878 A.2d 384
• Court: Connecticut Court of Appeals
• Parties: NORMAN TUCHMAN ET AL. v. STATE OF CONNECTICUT ET AL.

89 Conn. App. 745

878 A.2d 384

NORMAN TUCHMAN ET AL. v.STATE OF CONNECTICUT ET AL.

(AC 24792).

Appellate Court of Connecticut.

Argued February 14, 2005.

Officially released June 24, 2005.

Lavery, C. J., and DiPentima and McLachlan, Js.

Kenneth A. Votre, for the appellants(plaintiffs).

Mark P. Kindall, assistant attorney general, with whom were David H. Wrinn, assistant attorney general, and, on the brief, Richard Blumenthal,attorney general, and Kimberly P. Massicotte, assistant attorney general, for the appellees(defendants).

Opinion

McLACHLAN, J.

The plaintiffs, Norman Tuchman, Alan Tuchman and Bechem Transport, Inc., appeal from the judgment of the trial court dismissing their action against the defendants, the state of Connecticut, the department of environmental protection (department) and David A. Nash, both individually and in his capacity as an employee of the department.The plaintiffs also challenge the court's denial of their subsequent motion for reconsideration.The plaintiffs claim that the court improperly concluded that it lacked subject matter jurisdiction to entertain the action on the basis of the doctrines of sovereign immunity, qualified immunity and statutory immunity.We affirm the judgment of the trial court.

The following facts are alleged in the plaintiffs' complaint.At all times relevant to this action, Norman Tuchman and Alan Tuchman owned and operated Bechem Transport, Inc., a corporation engaged in the business of transporting chemicals and hazardous waste products within the state of Connecticut through a facility located in New Haven.The plaintiffs were registered and licensed to conduct this activity within the state.As part of the business, the plaintiffs also engaged in the "transshipping" of hazardous waste.Although the term "transship" is not used in the state's environmental statutes, the plaintiffs maintain, and the defendants do not dispute, that the term refers to the process of transferring waste from one transportation vehicle to another vehicle, allowing loads to be consolidated for further shipment.For several of the years that the plaintiffs engaged in transshipment, no statutes or regulatory provisions specifically governed this activity.

In 1991, the General Assembly enacted legislation that authorized the department to regulate the transshipment of hazardous waste, including issuing permits.SeePublic Acts 1991, No. 91-313, § 1.At that time, the legislature also amended General Statutes § 22a-454 to provide as follows: "(c) No person shall engage in the business of the transfer of hazardous waste from one vehicle to another or from one mode of transportation to another without a permit from the commissioner issued under subsection (a) of this section."Public Acts 1991, No. 91-313, § 2.The plaintiffs purport, and the state does not dispute, that the department did not take advantage of its regulatory authority pertaining to the transshipment of hazardous waste until approximately 1998 and that until that time, the plaintiffs conducted transshipment activities without a permit.¹

On August 24, 1998, the department issued a notice of violation to the plaintiffs, ordering them to cease and desist all transshipment activities or face fines of up to $25,000 per day.The plaintiffs complied with the cease and desist order and then applied for a permit to transship.This application was denied by the department.The plaintiffs maintain, and the defendants do not dispute, that the department has never issued a permit to any business for the transshipment of hazardous waste.

On January 3, 2003, the plaintiffs brought this action against the defendants.²The plaintiffs alleged various violations of both state and federal law, including, inter alia, violations of 42 U.S.C. § 1983 et seq., the fifth and fourteenth amendments to the United States constitution, and violations of the due process and equal protection clauses of the constitution of Connecticut.³The plaintiffs sought a declaratory judgment that the defendants had violated their rights under the Connecticut and United States constitutions, a permanent injunction to restrain the defendants from prohibiting them from operating their business, compensatory and punitive damages, and attorney's fees.

On February 6, 2003, the defendants filed a motion to dismiss the entire complaint for lack of subject matter jurisdiction.In their supporting memorandum of law, the defendants argued that the state, the department and Nash in his official capacity were protected from suit by the doctrine of sovereign immunity and that no exception to the doctrine was applicable.They argued further that Nash in his individual capacity was protected by qualified immunity with respect to the plaintiff's federal constitutional claims, and by statutory immunity with respect to the claims made pursuant to the constitution of Connecticut.

The court issued a memorandum of decision on August 11, 2003, granting the motion to dismiss.The court concluded that it lacked subject matter jurisdiction as to all three defendants for the reasons argued by the defendants in their memorandum of law in support of the motion to dismiss.

On September 2, 2003, the plaintiffs filed a motion for reconsideration seeking reconsideration of the court's dismissal of their complaint as to Nash in his individual capacity.They argued in particular that the case of Miller v. Egan,265 Conn. 301, 828 A.2d 549(2003), made improper the court's dismissal of this portion of their complaint.The court denied the motion for reconsideration on October 16, 2003.This appeal followed.

I

We first consider the plaintiffs' claim that the court improperly dismissed their complaint on subject matter jurisdiction grounds.We address this claim in two parts, beginning with the claims asserted against the state, the department and Nash in his official capacity, and turning then to the claims asserted against Nash in his individual capacity.

"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. . . .When a [trial] court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light. . . .In this regard, a court must 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. . . .A determination regarding a trial court's subject matter jurisdiction is a question of law.When . . . the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record."(Citation omitted; internal quotation marks omitted.)Cox v. Aiken,86 Conn. App. 587, 591-92, 862 A.2d 319(2004), cert. granted on other grounds, 273 Conn. 916, 871 A.2d 370(2005).

A

The plaintiffs argue that the court improperly dismissed their claims against the state, the department and Nash in his official capacity on the basis of sovereign immunity.We disagree.

"We have long recognized the common-law principle that the state cannot be sued without its consent. . . .We have also recognized that because the state can act only through its officers and agents, a suit against a state officer [or agent] concerning a matter in which the officer [or agent] represents the state is, in effect, against the state. . . .Therefore, we have dealt with such suits as if they were solely against the state and have referred to the state as the defendant."(Internal quotation marks omitted.)Bloom v. Gershon,271 Conn. 96, 107, 856 A.2d 335(2004).The doctrine of sovereign immunity "protects the state, not only from ultimate liability for alleged wrongs, but also from being required to litigate whether it is so liable."Shay v. Rossi,253 Conn. 134, 165, 749 A.2d 1147(2000), overruled in part, Miller v. Egan,265 Conn. 301, 325, 828 A.2d 549(2003).Although the trial court did not do so, we discuss the portion of the claims against the state seeking damages separately from the portion seeking injunctive and declaratory relief.

We first consider the plaintiffs' claim for damages.In their prayer for relief, the plaintiffs sought, inter alia, "[c]ompensatory damages for deprivation of the [p]laintiffs' civil rights, out-of-pocket expenses and loss of the value of the business . . . punitive damages. . . [and] reasonable attorney['s] fees and costs."

In both the defendants' motion to dismiss and the court's memorandum of decision granting that motion, the plaintiffs' claims for damages and those for injunctive and declaratory relief were addressed together.With respect to both types of claims, the defendants argued and the court found that the doctrine of sovereign immunity barred the claims because the plaintiffs failed to demonstrate that the conduct at issue fell within one of the recognized exceptions to the doctrine.Although we agree that the claims for damages were dismissed properly, we do so on grounds different from those asserted by the trial court.

It has long been recognized that "[w]hen a plaintiff brings an action for money damages against the state, he must proceed through the office of the claims commissioner pursuant to chapter 53 of the General Statutes, §§ 4-141 through 4-165.Otherwise, the action must be dismissed for lack of subject matter jurisdiction under the doctrine of sovereign immunity."Prigge v. Ragaglia,265 Conn. 338, 349, 828 A.2d 542(2003).This is true even where, as here, claims are brought pursuant to the United States constitution.Seeid.(dismissing claims seeking damages brought under first, fourteenth amendments to United States constitution where permission not received from...