Opinion
No. CV 08-4039528-S
June 15, 2009
MEMORANDUM OF DECISION ON DEFENDANT'S MOTION TO DISMISS
FACTS AND PROCEDURE
This is a case involving a plaintiff, Tony A. Wilson, (hereinafter also "Wilson") and his application for admission to the Connecticut Bar. The defendant, Connecticut Bar Examining Committee (hereinafter also "CBEC") is the state agency that reviews all applications for admission to the Connecticut Bar. The CBEC notified the plaintiff that the CBEC would conduct a formal hearing on June 13, 2008 to assess the plaintiff's good moral character and fitness to practice law in the State of Connecticut. Wilson was notified that failure to appear without prior approval could result in the denial of his application. Wilson waived his right to appear and chose to participate by written statements only. He was notified of six specifications, as follows:
1. Candor and Credibility during the application process.
2. The applicant was discharged from the Florida Department of Children and Families for excessive absences and conduct described as hostile, confrontational and threatening, which may be conduct evidencing a disregard for the law and the rights of others.
3. The applicant's criminal history includes arrests for assault and battery and possession of marijuana, which may be evidence of a disregard for the law and the rights of others.
4. The applicant was denied admission to the Bar of Florida on character and fitness grounds in 2006.
5. The applicant states in written documentation to the committee that his Florida Bar application is "pending" which may constitute a false, misleading and incomplete disclosure on his application for admission to the Bar in Connecticut in light of the fact that he was denied admission to the Florida Bar on July 21, 2006.
6. A Delaware Department of Corrections (DDOC) job offer made to the applicant as a Probation and Parole officer was rescinded by the DDOC as a result of a background check conducted upon the applicant.
The plaintiff thereafter submitted several documents to the CBEC but none of which were attached to the pleading or were provided to the defendant in connection with this action. The plaintiff also responded to the claims against him. On June 13, 2008 a three-member panel of the CBEC voted unanimously to deny the plaintiff's application and the plaintiff was given notice of the panel's decision. One of the reasons given by the three member panel for denying the application was: "[t]he applicant states in written documentation to the committee that his Florida Bar application is `pending' which may constitute a false, misleading and incomplete disclosure on his application . . . in light of the fact that he was denied admission to the Florida Bar on July 21, 2006." Later the plaintiff stated that at the time of his application his appeal from the decision of the Florida committee was pending in the Florida Supreme Court. However, he did not submit this evidence prior to the hearing. It is claimed that this constitutes a reason for why the CBEC was incorrect in its decision. There are several other arguments made by the plaintiff as to why the CBEC was wrong. However, it is not the duty of this Court to evaluate the merits of the committee's decision. This Court is concerned solely with the defendant's motion to dismiss dated October 10, 2008. Since the plaintiff resides in Delaware, the Court held a hearing on the notion to dismiss by teleconference with him from Delaware and present in this Court's chambers were the Assistant Attorney General, a member of the CBEC staff and a court monitor to record the proceedings. It was a lengthy (approximately one-plus hours) hearing in which the Assistant Attorney General and the plaintiff fully participated.
STANDARD OF REVIEW
"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." Gurliacci v. Mayer, 218 Conn. 531, 544 (1991). The Court must consider the allegations of the complaint in their most favorable light. Kozlowski v. Commissioner of Transportation, 247 Conn. 497, 501 (2005). "Whenever the absence of jurisdiction is brought to the notice of the Court or tribunal, cognizance of it must be taken and the matter passed upon before it `can move one further step in the cause; as any movement is necessarily the exercise of jurisdiction." Baldwin Piano and Organ Company v. Vincent Blake, et al., 186 Conn. 295, 297 (1982). "The requirement of subject matter jurisdiction cannot be waived by any party and can be raised at any stage of the proceedings." Brunswick v. Inland Wetlands Comm'n, 222 Conn. 541, 549, 610 A.2d 1260 (1990). "(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 favorable to the pleader." (Internal quotation marks omitted.) Filipi v. Sullivan, 273 Conn. 1, 8 (2005). It is also well settled law that failure to exhaust administrative remedies and/or sovereign immunity where the State is involved can be grounds for dismissal.
ISSUES AND FINDINGS
There are four bases for the defendant's urging the granting of the motion to dismiss, which bases will be taken in order.
1. Does this Court lack subject matter jurisdiction due to the plaintiff's failure to exhaust his available administrative remedies before the CBEC?
The short answer is yes.
In D'Eramo v. Smith, 273 Conn. 610, 616 (2005), the Court stated "[u]nder our exhaustion of administrative remedies doctrine, a trial court lacks subject matter jurisdiction over an action that seeks a remedy that could be provided through an administrative proceeding, unless and until that remedy has been sought in the administrative form . . . In the absence of exhaustion of that remedy,' the action must be dismissed." There is an important regulation of the CBEC, namely Article RT VI-5(e)(v) which allows "[a]ny applicant who is dissatisfied with a panel decision to within 60 days of notice of the panel's decision file with the administrative director a petition for reconsideration and have the panel's decision reconsidered by a quorum of the entire 26 member CBEC." Instead of exhausting his administered remedy as described, the plaintiff ignored this procedure and instead filed suit in both Federal District Court in Delaware and Connecticut Superior Court challenging the panel's decision. In the event that the plaintiff had additional material to provide to an expanded committee, this would have been the place to do it and could have resulted in the full committee overruling the three-member committee that denied his application.
2. Does sovereign immunity deprive this Court of subject matter jurisdiction?
The short answer is yes.
The plaintiff wants this Court to issue injunctive relief dismissing the CBEC's specifications against him and ordering his admission to the Bar. In Tuchman v. State, 89 Conn.App. 745, 753 (2005), the Court held that sovereign immunity bars claims for injunctive or declaratory relief against the State unless one of three narrow exceptions apply:
1. The legislature has waived the State's sovereign immunity;
2. When an action seeks declaratory or injunctive relief on the basis of a substantial claim that the State or one of its officers has violated the plaintiff's constitutional rights or;
3. When an action seeks declaratory or injunctive relief on the basis of a substantial allegation of wrongful conduct to promote an illegal purpose in excess of the officers statutory authority.
This Court concludes that the legislature did not waive the State's sovereign immunity or was there any evidence of a substantial allegation of wrongful conduct to promote an illegal purpose in excess of the officer's statutory authority. The gravamen of the plaintiff's claim against sovereign immunity is 2) "when an action seeks declaratory injunctive relief on the basis of a substantial claim that the State or one of its officers has violated the plaintiff's constitutional rights. The plaintiff claims that he was deprived of due process by the CBEC's proceedings and that the CBEC panel "`acted arbitrarily' or unreasonably or in an abusive discretion or without a fair investigation of the facts."
It is clear to this Court that the plaintiff's claim that the CBEC relied on the decision of the Florida Board of Bar Examiners which the CBEC described as "very well thought out" and followed a "lengthy" hearing because the plaintiff did not have proper notice that the CBEC would rely on that decision and because the plaintiff's alleged appeal of that decision somehow kept his representation to the CBEC that his Florida Bar Application was pending from being false, misleading and incomplete is without merit. It is clear from the forgoing facts that the plaintiff did have proper notice that the CBEC would rely on the Florida decision since it was in the six specifications against him of which he had notice. As for his use of the word "pending" as to the Florida Bar Application, he did not explain to the committee in his written documentation to the committee what pending meant, and since the Florida committee had acted, it was logical for the committee in Connecticut to assume that "pending" was misleading. Neither of these claims rise to a violation of his constitutional right and, therefore, he cannot use the alleged deprivation of constitutional rights to avoid sovereign immunity. The Supreme Court of Connecticut has constantly ruled that notices are sufficient to satisfy due process "as long as it adequately informs the attorney of the charges against him or her and allows him or her to prepare to address thus charges." (This was in regard to a grievance proceeding.) See Friedman v. CBEC, 77 Conn.App. 526, 542 (2003). A further problem is that the plaintiff did not provide to the subcommittee of the CBEC any evidence of a valid appeal to the Florida Supreme Court, and, as a matter of fact, even though this is subsequent to the decision of the CBEC subcommittee, in the hearing before this Court the plaintiff admitted that the decision in Florida had been affirmed by the Florida Supreme Court.
3. Was the process served by the plaintiff sufficient?
The short answer is no.
The plaintiff's pleadings in this action refers to and incorporates various materials, but he has not provided the required copies of those materials in accordance with Practice Book § 10-29 which requires a plaintiff referring to external materials as part of his complaint to serve a copy of such exhibits on each party to the action forthwith upon receipt of notice of the appearance of such party and file the original of such exhibit or exhibits in Court with proof of service to each appearing party. This, the plaintiff failed to do. For example, he provided no evidence that he had an appeal before the Florida Supreme Court other than its docket number.
4. Did the plaintiff file the required bond?
The short answer is no.
Under CPB § 8-3 the bond for prosecution is required where a plaintiff is not an inhabitant of Connecticut or may not be able to pay the cost of the action should judgment be rendered against the plaintiff. The recognizance section has not been filled in and CPB § 8-5(a) states "When there has been a failure to comply with the provisions of §§ 8-3 and 8-4 the validity of the writ and services shall not be affected unless the neglect is made a ground of a motion to dismiss." (Emphasis added.) The plaintiff has failed to satisfy the bond requirement.
CONCLUSION
For the foregoing reasons, the plaintiff's complaint is dismissed.