Opinion
HHBCV166032047S
08-22-2016
Trinity Christian School v. Commission on Human Rights and Opportunities et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON MOTION TO DISMISS
Carl J. Schuman, Judge.
Plaintiff Trinity Christian School has filed this appeal from the denial by a referee for the defendant commission on human rights and opportunities (commission) of the plaintiff's motion to dismiss a claim of employment discrimination filed by defendant Andrea Sokolowski. The plaintiff asserts primarily that Sokolowski's duties were ministerial in nature (in the religious sense), that the plaintiff has immunity from suit under General Statutes § 52-571b, which generally protects religious freedom, and that the plaintiff's statutory immunity gives it a right to take an immediate appeal. The commission moves to dismiss on the ground that the appeal is interlocutory. The court agrees and grants the commission's motion to dismiss.
I
This case has a most unfortunate procedural history. Sokolowski first filed her complaint of pregnancy discrimination with the commission in April 2011, almost five and one-half years ago. In October 2012, the plaintiff filed a motion to dismiss on the ground that the common law ministerial exception, which protects religious institutions from suit by its ministers and clergy, gave the plaintiff immunity from the commission action. The referee denied the motion and the plaintiff appealed. On February 24, 2014, the court, Prescott, J., granted the commission's motion to dismiss the appeal on the ground that, under Hasanna-Tabor Evangelical Lutheran Church & School v. Equal Employment Opportunity Commission, 565 U.S. 171, 132 S.Ct. 694, 181 L.Ed.2d 650 (2012) (Hasanna-Tabor), the ministerial exception, as a matter of federal first amendment law, was an affirmative defense rather than a jurisdictional defense and therefore the plaintiff could not take an immediate appeal. See Trinity Christian School v. Commission on Human Rights and Opportunities, Superior Court, judicial district of New Britain, Docket No. HHB CV13 6021547S (February 24, 2014).
Back in the commission, but over a year later, the plaintiff filed a second motion to dismiss, this time claiming that it was immune pursuant to General Statutes § 52-571b(d). The parties completed the filing of briefs on June 4, 2015. The referee nonetheless took until December 10, 2015 to write a three page decision, the essence of which was as follows: " [T]he dispute remains the same as in the October 2012 motion to dismiss, i.e. the applicability of the 'ministerial exception.' Therefore the previous ruling on that question should be honored."
After oral argument of the pending motion to dismiss, the court has heard no convincing explanation of why the plaintiff did not raise this ground in its original motion to dismiss, or why the commission did not seek to defeat the second motion to dismiss on the ground of claim preclusion or waiver.
The plaintiff has again appealed and the commission has again moved to dismiss the appeal on the ground that it is interlocutory.
II
In Rweyemamu v. Commission on Human Rights & Opportunities, 98 Conn.App. 646, 911 A.2d 319 (2006), cert. denied, 281 Conn. 911, 916 A.2d 51, cert. denied, 552 U.S. 886, 128 S.Ct. 206, 169 L.Ed.2d 144 (2007), the Appellate Court first held that " Connecticut administrative law . . . must recognize the ministerial exception in the enforcement of our employment discrimination statutes." Id., 654. Then, in Dayner v. Archdiocese of Hartford, 301 Conn. 759, 23 A.3d 1192 (2011), our Supreme Court stated that " the ministerial exception . . . is constitutionally required by various doctrinal underpinnings of the [f]irst [a]mendment . . . When the ministerial exception applies, it provides the defendant with immunity from suit and deprives the court of subject matter jurisdiction." (Citations omitted; internal quotation marks omitted.) Id., 769.
In Dayner, our Supreme Court had to decide whether a trial court's denial of a motion to dismiss premised on the ministerial exception was an immediately appealable judgment under General Statutes § 52-263, which governs appeals from the Superior Court. Id., 768. The Court applied the second prong of the test from State v. Curcio, 191 Conn. 27, 463 A.2d 566 (1983), under which " a colorable claim to a right to be free from an action is protected from the immediate and irrevocable loss that would be occasioned by having to defend an action through the availability of an immediate interlocutory appeal from the denial of a motion to dismiss." Dayner v. Archdiocese of Hartford, supra, 301 Conn. 771.
Under the two-pronged Curcio test a party can appeal an otherwise interlocutory order: " (1) where the order or action terminates a separate and distinct proceeding, or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them . . ." (Internal quotation marks omitted.) Dayner v. Archdiocese of Hartford, supra, 301 Conn. 768 (quoting State v. Curcio, supra, 191 Conn. 31).
Although appeals to the Superior Court under the Uniform Administrative Procedures Act (UAPA), such as the present one, derive their authority from General Statutes § 4-183 rather than § 52-263, there are no reasons not to apply the same principles. Indeed, § 4-183(a) similarly provides for appeals from a " final decision" of an agency and § 4-183(b) contains exceptions similar to those in the second prong of Curcio .
Section 4-183(a) provides: " (a) A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the Superior Court as provided in this section. The filing of a petition for reconsideration is not a prerequisite to the filing of such an appeal."
Section 4-183(b) provides: " (b) A person may appeal a preliminary, procedural or intermediate agency action or ruling to the Superior Court if (1) it appears likely that the person will otherwise qualify under this chapter to appeal from the final agency action or ruling and (2) postponement of the appeal would result in an inadequate remedy."
Therefore, the court must determine whether the plaintiff relies on " a colorable claim to a right to be free from an action . . ." Dayner v. Archdiocese of Hartford, supra, 301 Conn. 771. Such a claim " is protected from the immediate and irrevocable loss that would be occasioned by having to defend an action through the availability of an immediate interlocutory appeal from the denial of a motion to dismiss." Id. A claim is " colorable" when the appealing party can demonstrate that it might prevail. See State v. Crawford, 257 Conn. 769, 776, 778 A.2d 947 (2001), cert. denied, 534 U.S. 1138, 122 S.Ct. 1086, 151 L.Ed.2d 985 (2002). See also id., 776-80 (no colorable double jeopardy claim or basis for interlocutory appeal when defendant claimed that State could not charge him with manslaughter in the first degree after he had pleaded guilty to assault in the first degree, as the core of the defendant's claim was that he should not be punished twice for the same offense, not that he should be free from a subsequent prosecution).
The Dayner court, relying primarily on a decision of the District of Columbia Court of Appeals, held that the ministerial exception satisfied this test because " it provides the defendant with immunity from suit and deprives the court of subject matter jurisdiction." Dayner v. Archdiocese of Hartford, supra, 301 Conn. 771-72 (citing Heard v. Johnson, 810 A.2d 871, 877 (D.C. 2002)). However, five months after our Supreme Court decided Dayner, the United States Supreme Court handed down its ruling in Hasanna-Tabor . The Court concluded that the ministerial exception " operates as an affirmative defense to an otherwise cognizable claim, not a jurisdictional bar. That is because the issue presented by the exception is 'whether the allegations the plaintiff makes entitle him to relief, ' not whether the court has 'power to hear [the] case.'" Hasanna-Tabor, supra, 132 S.Ct. 709 n.4.
Our courts are bound by Hasanna-Tabor . The ministerial exception stems from the first amendment and is a matter of federal constitutional law. See Dayner v. Archdiocese of Hartford, supra, 301 Conn. 769; Rweyemamu v. Commission on Human Rights & Opportunities, 98 Conn.App. 652-53. The authority of the United States Supreme Court on issues of federal constitutional law is " full and complete." State v. Dukes, 209 Conn. 98, 113, 547 A.2d 10 (1988). Accordingly, the plaintiff can no longer make a colorable claim that the ministerial exception in itself affords it immunity from trial.
The plaintiff provides no analysis of, and does not purport to raise, a separate claim under the state constitution. The court therefore considers any such claim abandoned. See State v. James H., 150 Conn.App. 847, 860, 95 A.3d 524, cert. denied, 314 Conn. 913, 100 A.3d 404 (2014).
Instead, the plaintiff now argues that it is immune under § 52-571b(d). Section 52-571b(d) is part of a statute entitled " Action or defense authorized when state or political subdivision burdens a person's exercise of religion." Sections (a) through (d) of the statute provide as follows: " (a) The state or any political subdivision of the state shall not burden a person's exercise of religion under section 3 of article first of the Constitution of the state even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section.
" (b) The state or any political subdivision of the state may burden a person's exercise of religion only if it demonstrates that application of the burden to the person (1) is in furtherance of a compelling governmental interest, and (2) is the least restrictive means of furthering that compelling governmental interest.
" (c) A person whose exercise of religion has been burdened in violation of the provisions of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against the state or any political subdivision of the state.
" (d) Nothing in this section shall be construed to authorize the state or any political subdivision of the state to burden any religious belief."
Sections (e) and (f) of the statute provide as follows: " (e) Nothing in this section shall be construed to affect, interpret or in any way address that portion of article seventh of the Constitution of the state that prohibits any law giving a preference to any religious society or denomination in the state. The granting of government funding, benefits or exemptions, to the extent permissible under the Constitution of the state, shall not constitute a violation of this section. As used in this subsection, the term " granting" does not include the denial of government funding, benefits or exemptions.
The court must analyze § 52-571b under the backdrop of Employment Division, Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990). The Rweyemamu Court summarized Smith follows: " Smith held that the free exercise rights of a member of the Native American Church did not prohibit the government from enforcing the generally applicable drug laws that criminalize the use of peyote, even if used in a of [sic] religious ceremony. Id., at 885, 110 S.Ct. 1595. In so holding, the court concluded 'that the sounder approach, and the approach in accord with the vast majority of our precedents, is to hold the [compelling state interest] test inapplicable to such challenges. The government's ability to enforce generally applicable prohibitions of socially harmful conduct, like its ability to carry out other aspects of public policy, cannot depend on measuring the effects of a governmental action on a religious objector's spiritual development . . . To make an individual's obligation to obey such a law contingent upon the law's coincidence with his religious beliefs, except where the State's interest is compelling--permitting him, by virtue of his beliefs, to become a law unto himself . . . contradicts both constitutional tradition and common sense.' (Citations omitted; internal quotation marks omitted.) Id. " Rweyemamu v. Commission on Human Rights & Opportunities, supra, 98 Conn.App. 660.
The Rweyemamu Court also observed: " [T]he overarching purpose of § 52-571b was to provide more protection for religious freedom under Connecticut law than the Smith decision would provide under federal law." Id. Thus, subsections (a) and (b) state that, even in the case of a rule of general applicability, the compelling state interest test applies before the state can burden the exercise of religion. Subsection (c) essentially provides that, unless the state can meet the compelling state interest test, a person may assert a violation of his or her exercise of religion in a " claim or defense" against the state.
Subsection (d) states that " [n]othing in this section shall be construed to authorize the state or any political subdivision of the state to burden any religious belief." The Rweyemamu Court noted that " [i]n protecting the religious practices of individuals, the legislature made the distinction between the 'exercise of religion, ' which it protected with the strict scrutiny test found in subsections (a) and (b) of § 52-571b, and 'religious beliefs, ' which the legislature prevented from being burdened by subsection (d)." Id., 661. The Court then found that " employment of ministers and clergy by a religious institution is a " religious belief under subsection (d)." Id., 665. The Court thus concluded that the " language of subsection (d) prevents the application of the strict scrutiny test of subsections (a) and (b)" and that " Section 52-571b, therefore, does not displace the ministerial exception." Id.
The lasting import of Rweyemamu is that the strict scrutiny test does not apply to the assertion under the statute of the ministerial exception. Thus, in theory, even a compelling state interest such as the prevention of discrimination in employment cannot overcome reliance on the ministerial exception.
But nothing in Rweyemamu holds or implies that subsection (d)-as opposed to the common law ministerial exception-confers statutory immunity. Nor is there any other basis for this conclusion. To begin with, the language of subsection (d)-" [n]othing in this section shall be construed" -reveals that (d) provides a rule of construction for the statute rather than a grant of immunity. The language of (d) stands in stark contrast to the many other statutes in the same Title 52 that do confer statutory immunity. This language usually takes the form of " shall not be liable, " " no action may be brought, " or " shall be immune from civil liability." See General Statutes § § 52-557b (qualified medical personnel who voluntarily render first aid " shall not be liable" for ordinary negligence); 52-557e (" No action may be brought to recover damages against any licensed physician for any decision or action taken by him as a member of a hospital utilization review committee . . ."); 52-557j (" No landowner may be held liable for any injury sustained by any person operating a snowmobile, all-terrain vehicle . . ."); 52-557k(b) (" Any owner of land who [allows persons to harvest firewood, fruits, or vegetables or engage in maple-sugaring activities] . . . shall not be liable for damages as a result of injury to such person . . . 52-557l(a) (persons who donate food and nonprofit organizations or corporations that distribute donated food " shall not be liable for civil damages or criminal penalties resulting from the nature, age, condition or packaging of the food . . ."); 52-557m (directors, officers, and trustees of nonprofit tax-exempt organizations " shall be immune from civil liability for damage or injury . . . for any act, error or omission made in the exercise of such person's policy or decision-making responsibilities . . ."); 52-557n (municipalities and their officers and agents " shall not be liable for damages to person or property resulting from [ten enumerated conditions]"); 52-557o (" [n]o action for trespass shall lie against any surveyor licensed under chapter 391 . . . who enters upon land other than the land being surveyed . . ."); 52-557q (" [n]o claim for damages shall be made against a broadcaster . . . or an outdoor advertising establishment . . . that, pursuant to a voluntary program . . . broadcasts or disseminates an emergency alert . . ."); 52-557r(b) (" [a] fire department that delivers to, or installs at, residential premises a device or batteries for such a device shall not be liable for civil damages for personal injury, wrongful death, property damage or other loss . . . Moreover, the rules of statutory construction counsel against broadly interpreting subsection (d) to create statutory immunity. Our Supreme Court has observed that, because the recreational land use immunity conferred by § 52-557g is " in derogation of the common law, it should be strictly construed to effectuate its intended purpose . . ." Conway v. Wilton, 238 Conn. 653, 672 n.10, 680 A.2d 242 (1996). Although the current claim is one authorized by the commission's statutory authority rather than the common law, the assertion of immunity by the plaintiff nonetheless threatens to deprive the claimant of a remedy similar to a common law right of action. The United States Supreme Court, acknowledging the " salutary effects that the threat of liability can have, " has been " quite sparing" in recognizing claims to absolute immunity. Forrester v. White, 484 U.S. 219, 223, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988). Courts in other jurisdictions have also subjected statutes conferring immunity to the rule of strict construction. See Greenwood v. State, 217 Ariz. 438, 442-43, 175 P.3d 687 (Ariz. Ct.App. 2008); Bertrand v. Board of County Commissioners of Park County, 872 P.2d 223, 227 (Colo. 1994); Tittle v. Mahan, 582 N.E.2d 796, 800 (Ind. 1991).
Of course, at the time of Rweyemamu and through the tenure of Dayner, our courts considered the common law ministerial exception to provide immunity from suit rather than an affirmative defense. Hasanna-Tabor effectively overruled that approach and now, as a matter of federal constitutional law, even the common law ministerial exception does not provide immunity from suit.
However, in the case of sovereign immunity, the rule of strict construction may apply to a statute purporting to waive rather than confer immunity, because sovereign immunity itself has common law origins. See Bertrand v. Board of County Commissioners of Park County, supra, 872 P.2d 225-27; Hicks v. State, 297 Conn. 798, 801-02, 1 A.3d 39 (2010).
Applying the rule of strict construction, the court concludes that subsection (d) does not confer statutory immunity on religious institutions asserting the ministerial exception. Subsection (d) does not have any of the language of an immunity statute and it does not begin to describe the contours of the claimed immunity. The plaintiff's contrary interpretation calls for, at a minimum, a rule of very broad rather than strict construction. The better interpretation is that the ministerial exception remains an affirmative defense, as provided by Hasanna-Tabor, but one, under subsection (d), not subject to offset by a compelling governmental interest. Therefore, the plaintiff does not have a colorable claim of immunity under § 52-571b(d).
The plaintiff appears to argue that merely requiring it to defend the case with an affirmative defense will breach the guarantee of subsection (d) that the " state or any political subdivision of the state" will not " burden" any religious belief. General Statutes § 52-571b(d). Initially, it is not clear that requiring the plaintiff to plead an affirmative defense in a case filed by a private claimant represents a burden placed on the plaintiff by the " state or any political subdivision of the state." Further, even if (d) conferred statutory immunity, the plaintiff, when sued in the commission by the claimant, would still have to assume the " burden" of hiring a lawyer and litigating a motion to dismiss. Thus, it does not appear that the term " burden" in subsection (d) refers to ordinary litigation burdens.
II
The plaintiff also appeals on the ground that the referee rendered his decision denying the plaintiff's motion to dismiss more than 120 days after the submission of the last brief and therefore in violation of General Statutes § 51-183b. Section 51-183b generally requires trial courts to render judgment within 120 days from the completion of trial. See Cowles v. Cowles, 71 Conn.App. 24, 799 A.2d 1119 (2002). However, there is nothing in the language of § 51-183b that suggests that the statute applies to motions to dismiss in administrative proceedings. Such matters are governed separately by General Statutes § 4-180(a) of the UAPA, which the plaintiff does not invoke. Therefore, the plaintiff's second claim does not present a " a colorable claim to a right to be free from an action . . ." Dayner v. Archdiocese of Hartford, supra, 301 Conn. 771.
Section 51-183b provides: " Any judge of the Superior Court and any judge trial referee who has the power to render judgment, who has commenced the trial of any civil cause, shall have power to continue such trial and shall render judgment not later than one hundred and twenty days from the completion date of the trial of such civil cause. The parties may waive the provisions of this section."
Section 4-180(a) provides: " Each agency shall proceed with reasonable dispatch to conclude any matter pending before it and, in all contested cases, shall render a final decision within ninety days following the close of evidence or the due date for the filing of briefs, whichever is later, in such proceedings."
III
The court accordingly grants the motion to dismiss. It is so ordered.
" (f) For the purposes of this section, " state or any political subdivision of the state" includes any agency, board, commission, department, officer or employee of the state or any political subdivision of the state, and " demonstrates" means meets the burdens of going forward with the evidence and of persuasion."