Friday, December 5, 2008

PA 90-284 present a claim after the time passes‏

Scroll past the red writing for what I was sent by email regarding PA 90-284

[This] passes for policing in Connecticut

[my beef]

[Connecticut Judicial ridiculousness] scroll down

I was told to shut up about the prostitutes that were costing me $2000/month in lost rents and about the heroin and crack cocaine dealing by the Connecticut State Police, "Or else". [A post] about Connecticut Police and their love for prostitutes.

It can be impossible to get any real justice in a Connecticut court. Maybe the Connecticut Legislature can pick up the slack. The below came in by email:

PA 90-284 explicitly allows the General Assembly, through special act, to authorize a person to present a claim after the time passes

if it (1) deems the authorization to be just and equitable and (2) makes an express finding that such authorization is supported by

compelling equitable circumstances and would serve a public purpose. These findings may not be reviewed

GENERAL ASSEMBLY RESPONSES TO STATE SUPREME AND APPELLATE COURT DECISIONS

by the Superior Court.

PA 98-20 allows someone who is otherwise authorized to sue the state to file a lawsuit against the state even if the statute of limitation has expired.
PA 90-284 sHB 6020

Judiciary Committee

AN ACT CONCERNING CLAIMS AGAINST THE STATE SUMMARY: By law, most people seeking to sue the state must submit a claim to the claims commissioner. The claims commissioner may grant permission to sue only if he deems it just and equitable, and if the state, were it a person, could be liable. But the General Assembly must review all cases in which claimants are seeking over $7,500.Under this act, the General Assembly must apply the same standards as the claims commissioner when granting a person permission to sue. By law, claims to sue the state must be presented within one year after they accrue but no later than three years from the date of the incident alleged in the complaint. This act explicitly allows the General Assembly, through special act, to authorize a person to present a claim after the time passes if it

(1) deems the authorization to be just and equitable and

(2) makes an express finding that such authorization is supported by compelling equitable circumstances and would serve a public purpose. These findings may not be reviewed by the Superior Court. The General Assembly's practice had been to grant these claimants permission to sue under its broader authority to reject or alter recommendations of the claims commissioner.

When filing a suit based on General Assembly authorization, the act requires a claimant to state the authorization and the date it was granted. These statements are already required when suits are filed based on the claims commissioner's authorization. By law, the attorney general must report the status and disposition of all actions authorized by the claims commissioner to the General Assembly within five days after a regular session convenes. The act requires the attorney general to also report on actions authorized by the General Assembly.

EFFECTIVE DATE: October 1, 1990

BACKGROUND

Claims Against the State

The following claims against the state are not required to be filed with the claims commissioner:

1. claims for the periodic payment of disability, pension, retirement, or other employment benefits;

2. claims upon which suit is otherwise authorized by law;

3. claims for which an administrative hearing procedure is established by law;

4. requests by political subdivisions of the state for the payment of grants in lieu of taxes; and

5. claims for tax refunds.

http://search.cga.state.ct.us/dtSearch_lpa.html

In order to respond to your questions, we searched

(1) all state constitutional amendment since the ratification of the 1965 constitution;

(2) Law Revision Commission reports back to 1979, the year of the first report on state statutes found unconstitutional by a state court;

(3) statutory histories and statements of purpose back to 1990, the earliest year this information is electronically available; and

(4) bill analysis and public act summaries back to 1972, the first year these documents were produced by the Office of Legislative Research.

We found no instances in which an amendment to the state constitution was adopted after the state Supreme or Appellate Court held that the legislature lacked authority to adopt a particular statute or that a statute was otherwise unconstitutional.

We found three instances, one in 1990 and two in 1995, in which the State Supreme Court held that a state statute was unconstitutional and the legislature passed legislation contrary to the Court's decision. We did not find any comparable instances resulting from state Appellate Court decisions.

There have been at least 63 other instances in the last 43 years (since 1965) in which the state Supreme or Appellate Court has issued a decision and the legislature passed legislation contrary to the Court's decision.



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FROM: George Coppolo, Chief Attorney

RE: Sovereign Immunity—Chotkowski Case

You asked for a summary of Chotkowski v. State, 240 Conn. 246 (1997).

SUMMARY

The case involves the plaintiff's third visit to the Supreme Court in connection with litigation spanning three decades and consisting of a claim that the state improperly reduced the plaintiff's salary while he was employed by the Veteran's Home and Hospital over 20 years ago.

Ludmil Chotkowski sought to recover damages for the alleged improper reduction of the salary he had earned at a state hospital where he had been employed by the state as a physician. His claim was based on breach of express contract, breach of implied contract, and promissory estoppel. The legislature passed a special act (SA 91-8) allowing him to present his claim to the claims commissioner even though he missed the one year statute of limitations for doing so. The claims commissioner, acting under the authority of this special act, heard his claim and granted him permission to sue the state.

The Supreme Court concluded that the special act did not violate the state constitution's prohibition against public emoluments because it served a legitimate public purpose of remedying an inequity that the legislature rationally concluded had resulted from Chotkowski's reasonable reliance on a state official's misleading conduct. The official had misled him by informing him that he had no right of redress for the damages he allegedly suffered.

The Court also rejected several statutory arguments the state raised. First, it concluded that CGS § 4-142 did not bar his claim. This law removes the claim's commissioner's jurisdiction for claims for periodic payment of employment benefits and claims for which an administrative hearing procedure otherwise is established by law. Second, it concluded that CGS § 4-148(c) did not bar the claim. This law bars the presentment of claims previously considered by the commissioner, the legislature, and the judiciary.

The Court upheld the trial court's determination that Chotkowski, as a classified state employee, enjoyed only statutory, not contractual employment rights. Thus, it upheld the trial court's conclusion that he was not entitled to relief on his express or implied contract claims. It also upheld the court's conclusion that he had failed to establish the essential elements of a promissory estoppel claim.

Because the claim has been decided on its merits by the legislature and courts, few, if any options remain to assist Chotkowski. One possibility might be for the legislature to directly compensate him for his damages after a finding that under the circumstances, justice would be served. But this could be a difficult finding in light of his full opportunity to have his day in court.

FACTS

In November, 1969, the plaintiff left his private medical practice to accept an appointment as a “special assistant” at the state Veterans' Home and Hospital in Rocky Hill. In February, 1975, the position of special assistant was eliminated, and the plaintiff was reclassified as a “professional specialist” with no reduction in pay. The plaintiff then received notice of his proposed reclassification to “chief of medicine. ” Through correspondence with various state administrators, the plaintiff protested his reclassification and corresponding salary reduction. On May 20, 1975, he forwarded a letter to the State Department of Personnel and Administration requesting the “opportunity of appealing this decision before it should become final. ” The commissioner of personnel and administration, Frederic Rossomando, responded by letter dated June 3, 1975 (Rossomando letter), in which, contrary to applicable law, he stated: “I am advised that there is no existing statute or regulation which would permit such an appeal, either to me or any other appropriate body. ” Thereafter, on June 6, 1975, the plaintiff was reclassified to the position of “chief of medicine,” and his salary was reduced by $ 303. 64 biweekly.

On April 8, 1976, nearly one year later, the plaintiff's employment was terminated as a result of his continued conflicts with administration officials over his salary reduction. Shortly thereafter, on May 7, 1976, the plaintiff was rehired by the state as an “internist” at the Connecticut Valley Hospital, a position he held until his retirement in June, 1986. The plaintiff appealed his termination from the Veteran's Hospital to the state personnel appeal board (board), which dismissed the appeal, concluding that the plaintiff was not entitled to review of his claims because he was not a “permanent employee holding a position in the classified service” within the meaning of General Statutes (Rev. to 1975) § 5-202(a). The plaintiff 's administrative appeal of the board's decision was sustained by the trial court, on the ground that the plaintiff was a permanent employee in the classified state service for purposes of § 5-202(a). The board appealed to this court, and the Supreme Court affirmed the judgment of the trial court (Chotkowski v. Connecticut Personnel Appeal Board, 176 Conn. 1, 404 A. 2d 868 (1978)). The parties eventually agreed to a settlement of the plaintiff's employment termination claim.

After settling his employment termination claim, the plaintiff field a notice of claim with the claims commissioner under General Statutes § 4-147 requesting permission to sue the state for lost wages based upon the allegedly improper classification and salary reduction. The claims

commissioner rejected the plaintiff's claim, concluding that it was barred by the one year limitation for presenting claims against the state prescribed by General Statutes (Rev. to 1979) § 4-148(a).

Thereafter, the legislature, at the plaintiff's urging, passed No. 85-24 of the 1985 Special Acts (SA 85-24), which authorized the plaintiff to prosecute his claim against the state despite his failure to comply with the requirements of § 4-148(a). The plaintiff then renewed his claim to the claims commissioner, who granted the plaintiff permission to sue the state in accordance with General Statutes (Rev. to 1985) § 4-160(a).

The plaintiff subsequently commenced an action against the state alleging breach of contract and promissory estoppel. The trial court granted the state's motion for summary judgment on the ground that the plaintiff, as a permanent employee in the classified state service, enjoyed only statutory, and not contractual, employment rights. The plaintiff appealed to the Supreme Court which held that SA 85-24 constituted an “exclusive public emolument” prohibited by article first, § 1, of the state constitution. Accordingly, it remanded the case to the trial court with direction to dismiss the plaintiff's action for lack of jurisdiction (Chotkowski v. State, 213 Conn. 13, 566 A. 2d 419 (1989) (Chotkowski II).

The legislature then enacted No. 90-284 of the 1990 Public Acts (PA 90-284), now codified at CGS § 4-148(b), which authorized the legislature to allow a person to present a late claim to the claims commissioner if it deems it to be just and equitable and it makes an express finding that the authorization is supported by compelling equitable circumstances and would serve a public purpose. Acting pursuant to this law, the legislature enacted SA 91-8 which authorized the plaintiff to file a new claim with the claims commissioner despite missing the deadline.

The claims commissioner subsequently gave the plaintiff permission to sue the state. The plaintiff filed a suit based on breach of contract and promissory estoppel. The trial court rendered judgment for the state concluding that the plaintiff failed to prove that his employment with the state gave rise to any contractual rights and he also failed to prove the elements of his promissory estoppel claim.

The plaintiff appealed this decision and the state renewed the claim it had made to the trial court that SA 91-8 was unconstitutional.

CONSTITUTIONALITY OF THE SPECIAL ACT

The General Assembly enacted SA 91-8 pursuant to statutory standards it had enacted one year early (PA 90-284, codified as CGS § 4-148 (b)). This statute provides that the legislature, by special act, may excuse a claimant's failure to file a timely notice with the claims commissioner provided that the legislature “deems such authorization to be just and equitable and makes an express finding that such authorization is supported by compelling equitable circumstances and would serve a public purpose. ” Section 4-148 (b) also provides that the legislature's findings are not subject to review by the court.

SA 91-8 was predicated upon an express legislative finding that the plaintiff “failed to timely file a notice of a claim against the state with the claims commissioner because he was misinformed by a state official and was misled by such official into believing that he had no right of redress against the state for the damages he allegedly suffered,” and, further, “that there are compelling equitable circumstances to support such authorization and that such authorization would serve a public purpose. ”

The state claimed that SA 91-8 violates the prohibition against “exclusive public emoluments or privileges from the community” contained in article first, § 1, of the Connecticut constitution and, consequently, that the claims commissioner lacked authority to entertain the plaintiff's request for permission to sue the state. The trial court concluded that SA 91-8 serves a valid public purpose and, therefore, that it does not run afoul of article first, § 1. The Supreme Court agreed.

According to the Court, to prevail under article first, § 1, of our constitution, the state must demonstrate that the sole objective of the General Assembly is to grant personal gain or advantage to an individual. If, however, an enactment serves a legitimate public purpose, then it will withstand a challenge under article first. The court noted that legislative enactments carry with them a strong presumption of constitutionality, and that a party challenging the constitutionality of a statute bears the heavy burden of proving it to be unconstitutional beyond a reasonable doubt.

The plaintiff claimed that the trial court lacked authority to consider the propriety of the legislative finding that SA 91-8 serves a public purpose because such review is barred by § 4-148 (b), which provides that “[s]uch finding shall not be subject to review by the superior court. ” The plaintiff maintained that this legislative prohibition against judicial review is valid because § 4-148 (b) deals with the doctrine of sovereign immunity, and it is a matter for the legislature, not this court, to determine when the state's sovereign immunity should be waived.

The Court rejected this view. Instead, it concluded that because an enactment must serve a valid public purpose in order to avoid the prohibition against the granting of exclusive public emoluments and privileges contained in article first, § 1, of the state constitution, the determination of whether an enactment serves such a purpose is necessarily one of constitutional magnitude; thus, it is the court's duty to ensure that legislative action falls within constitutional boundaries even if that action involves a waiver of the immunity from suit enjoyed by the state under the common law. Consequently, the court held that the legislature cannot by mere fiat or finding, make public a truly private purpose. Thus, its findings and statements about what is or is not 'public' cannot be binding upon the court.

Before beginning its review of whether this special act served a public purpose, the Court noted that what constitutes a public purpose is primarily a question for the legislature, and its determination should not be reversed by the court unless it is manifestly and palpably incorrect.

Having concluded this, however, the Court went on to describe situations in the past where it had concluded enactments had satisfied public purpose. Under these prior rulings, a law was deemed to serve a public purpose when it promoted the state's welfare or when its principle reason was to benefit the public. Further, laws that conferred a direct benefit upon a particular person were found to serve a valid public purpose if they remedied an injustice done to an individual for which the state itself bears responsibility. In such cases the court viewed the benefit conferred upon an individual as incidental to the overarching public interest that is served in remedying an injustice caused by the state.

The court noted that in this case, the legislature had acted on the basis of undisputed testimony detailing the circumstances surrounding the plaintiff's failure to file a claim within the period prescribed by § 4-148. It had expressly found that the plaintiff had failed to comply with § 4-148 (a) “because he was misinformed by a state official and was misled by such official into believing that he had no right of redress against the state for the damages he allegedly suffered. ” The legislature further concluded that the plaintiff's request for special authorization to file a late claim with the claims commissioner was supported by “compelling equitable circumstances” and that “such authorization would service a public purpose. ” These conclusions according to the Court, are supported by the testimony presented to the legislature and by the evidence adduced at trial.

In concluding that the challenged legislation did not contravene constitutional requirements, the Court recognized that there exist strong equitable grounds for legislative interference when a government official has caused a procedural default that adversely affects the substantive rights of the party seeking legislative intervention. According to the Court, the challenged special act seeks to remedy an inequity that the legislature rationally concluded had resulted from the plaintiff's reasonable reliance on the misleading conduct of a state official.

BREACH OF EXPRESS OR IMPLED CONTRACT

The Court had previously held that state employees do not have contractual employment rights absent a clear and unambiguous expression of legislative intent to the contrary (Pineman v. Oechslin, 195 Conn. 405, 416, 488 A. 2d 803 (1985); see also Kinney v. State, 213 Conn. 54, 65 n. 17, 566 A. 2d 670 (1989)). According to the Court, if this were not the case, the state would be powerless to reduce the pay or shorten the tenure of any state employee without posing a possible contract clause violation. Thus, in the Court's view, state employees serve by appointment, and their entitlement to pay and other benefits must be determined by reference to the statutes and regulations governing compensation, rather than to ordinary contract principles. Consequently, the court concluded that the plaintiff can prevail on his contract claims only if he can establish that the legislature intended to bind the state contractually under the statutory scheme pursuant to which he was appointed.

According to the Court, the plaintiff pointed to nothing in the statutes applicable to classified state employees, or elsewhere in the statutes or regulations, to support a claim of contractual entitlement. Because the plaintiff's express and implied contract claims were based on the existence of rights he did not possess, the Court upheld the trial court's decision that he was not entitled to any relief on his breach of contract claims.

PROMISSORY ESTOPPEL

The Court began its discussion of this issue by first stating the following rules regarding promissory estoppel claims.

Any claim of estoppel is predicated on proof of two essential elements: the party against whom estoppel is claimed must do or say something calculated or intended to induce another party to believe that certain facts exist and to act on that belief; and the other party must change its position in reliance on those facts, thereby incurring some injury. It is fundamental that a person who claims an estoppel must show that he has exercised due diligence to know the truth, and that he not only did not know the true state of things but also lacked any reasonably available means of acquiring knowledge. In addition, estoppel against a public agency is limited and may be invoked: (1) only with great caution; (2) only when the action in question has been induced by an agent having authority in such matters; and (3) only when special circumstances make it highly inequitable or oppressive not to estop the agency. Finally, a claim for promissory estoppel will not lie against the state unless the party claiming estoppel would be subjected to substantial loss if the public agency were permitted to negate the acts of its agents.

The Court concluded that the evidence fully supports the trial court's determination that the plaintiff failed to prove his estoppel claim. The only statement made by state officials to the plaintiff was that he would be paid $ 35,000 per year and that this rate would be subject to future increases. The trial court concluded that these statements were neither sufficiently promissory nor sufficiently definite to support the plaintiff's claim. Furthermore, the plaintiff offered no proof that the state officials were empowered to bind the state, or that he exercised due diligence in trying to find out whether they were authorized to do so. The Court concluded that because the plaintiff did not establish the essential elements of his claim of promissory estoppel, the trial court properly rendered judgment for the state regarding this claim.

GC: lc/mw

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