Declaratory Ruling: Ross v. Judicial Dep't

STATE OF CONNECTICUT

COMMISSION ON HUMAN RIGHTS AND OPPORTUNITIES

Penny Ross : No. 9630391

vs. :

State of CT Judicial Department and Robert C. Flanagan

September 11, 2000

DECLARATORY RULING
ON THE PETITION FOR EXPEDITED DECLARATORY RULING
FILED BY ROBERT C. FLANAGAN

I. INTRODUCTION.

This Petition for an Expedited Declaratory Ruling grows out of a complaint of discrimination filed by Penny Ross (Complain-ant) against the State of Connecticut Judicial Department (co-Respondent) and Robert C. Flanagan (Respondent) with the Com-mission on Human Rights and Opportunities (CHRO) on March 19, 1996.

By Petition for an Expedited Declaratory Ruling received by the CHRO on May 23, 2000, the Respondent requests that the CHRO "issue a declaratory ruling that the time limitations of Section 46a-83 of the [Connecticut] General Statute[s] is mandatory, and that, therefore, the CHRO lacks jurisdiction over the instant complaint...because, pursuant to Section 46a-83(d), no finding of reasonable cause or no reasonable cause was made, even through the date of this Petition...." See Petition at 2.

II. FACTS.

The facts supplied to the CHRO by the Respondent are as follows:

See Petition at 2.

III. PARTIES.

The party to this Declaratory Ruling is:

Robert C. Flanagan
39 Whaler's Point Road
East Haven, CT 06512.

Peter D. Klein
47 Capitol Ave.
Wallingford, CT 06492.

In addition, the Complainant and co-Respondent have an interest in the subject matter of this Declaratory Ruling. They are:

Penny Ross
c/o Atty. Norman A. Pattis
Williams, Polan & Pattis
51 Elm Street
Suite 409
New Haven, CT 06510.

State of Connecticut Judicial Department
75 Elm Street
Hartford, CT 06106.

The Certification on the Respondent's Petition for an Expedited Declaratory Ruling indicates that copies of the Petition were mailed on May 23, 2000 to the Complainant's attorney, Norman A. Pattis, at the above address; and to the co-Respondent's attorney, Richard O'Connor, at 150 Trumbull Street, Hartford, CT 06103.

Moreover, by letters dated June 9, 2000 and mailed certified mail, the CHRO apprised counsel for Complainant and the co-Respondent that this Petition was pending and invited their participation in these proceedings. A copy of these letters is attached.

The CHRO received no response to this correspondence. Had they wished, the Complainant and co-Respondent could have intervened or been made a party to this proceeding. See CONN. GEN. STAT. ' 4-176(d); Section 46a-54-124 of the REGULATIONS OF CT STATE AGENCIES.

IV. THE CHRO HAS JURISDICTION TO INVESTIGATE COMPLAINANT'S CHRO COMPLAINT.

After reciting a portion of the procedural history of this case from the date of its filing; see Petition at 3-5; Respondent asserts that the CHRO lost jurisdiction over Complainant's com-plaint by the undue passage of time. According to Respondent, "more than three years has (sic) transpired without action by the CHRO. Accordingly, the statute of limitations within which the CHRO may act having long expired, and, in the interest of finality, the CHRO has no jurisdiction over this matter." See Petition at 5 (emphasis in original).

We gain some understanding of the situation we confront from a deeper investigation of the facts prompting the Petition.¹ As said, the Complainant, a court reporter, filed her Complaint with the CHRO on March 19, 1996, charging the Respondent, at the time a sitting judge of the Superior Court, and the co-Respondent with sexual harassment discrimination. She later amended her Com- plaint on May 29, 1996.

Respondent first filed a Motion to Dismiss dated May 20, 1996, asserting that under federal anti-discrimination law he was not individually liable for allegedly sexually harassing an employee of the co-Respondent.² The Respondent then answered the original Complaint on or about May 28, 1996 and the amended Complaint on or about June 11, 1996, not waiving the grounds contained in the Motion to Dismiss.

The Respondent later filed a second Motion to Dismiss and a Motion to Disqualify on July 26, 1996. Both motions essentially alleged violations of the State Ethics Code, in that Barbara Lifton, a one-time CHRO Hearing Officer, was also representing the Complainant. The Motion to Dismiss was denied by the CHRO on August 8, 2000. On or about August 2, 2000, Respondent moved for an order pursuant to Section ' 46a-54-98 of the CHRO's Regulations to compel Moira Butler, an employee of the co-Respondent, to respond to written interrogatories.

As Respondent points out; see Petition at 3-4; the ground for contesting these matters then shifted to the courts of this state. On September 8, 1996, Respondent brought a ten-count action in the Superior Court seeking injunctive relief to prevent the CHRO from investigating Complainant's Complaint. Named as defendants were the CHRO; Mercedes Alonzo, a CHRO Investigator; Moira Butler; the Complainant, Penny Ross; and Barbara Lifton, the Complainant's attorney. The Court did not grant any ex parte injunctive relief; instead, a show cause hearing was set for September 30, 1996.

On that date, Respondent's counsel announced, "there's an agreement that there's no proceedings before the C.H.R.O. until further order of the court." See Transcript at 4, Flanagan v. CHRO, No. CV-96-0563942, J.D. of Hartford-New Britain at Hartford (September 30, 1996)(O'Neill, J.). The CHRO apprised the Court that it intended to file a motion to dismiss and needed two weeks to prepare the motion. As a result, the stay was to last at least "for two weeks and until further order of this Court." Id. at 5. In the words of Judge O'Neill, "I guess it would be like a federal bankruptcy stay--nothing happens." Id. at 3.

That a temporary injunction was not itself issued on September 30, 1996 is made plain from the history of the case. On or about October 2, 1996, Butler filed an Objection to Application for Injunction. Lifton filed an Objection to Plain-tiff's Application for Preliminary Injunction and Motion to Strike the Complaint on or about October 8, 1996. The Superior Court calendared the Respondent's Motion for Temporary Injunction and one of these objections for the Prejudgment Remedies calendar for October 15, 1996. The Respondent filed a response to Butler's Objection dated October 11, 1996. These motions were not heard at that time, however, and the Court (Langenbach, J.) issued an order regarding the motion for temporary injunction and objection to the effect that they would be "ready in two weeks as a final, it will either go ahead or date certain will be set."

The motions and objections, which by then totaled five, were set down for the Prejudgment Remedies calendar for October 28, 1996. This included the motion for temporary injunction.

On or about October 17, 1996, Butler filed a Motion to Dismiss. The CHRO filed its Motion to Dismiss on or about October 28, 1996. The parties agreed that the matter should not go forward on that date, and informed the Court (O'Neill, J.) in a letter dated October 24, 1996. A motion to dismiss appeared on the Prejudgment Remedies short calendar for November 4, 1996 and the regular civil-side short calendars for November 12 and November 18, 1996. By letter dated November 11, 1996, counsel for the Respondent informed Judge O'Neill that the parties wished to argue the motions to dismiss on November 26, 1996. By order of Judge Berger, the matter was accordingly set down for argument on that date.

By Objection and Memorandum of Law dated November 19, 1996, Respondent replied to the CHRO's Motion to Dismiss. He filed a subsequent Objection and Memorandum dated November 27, 1996. By Motion to Dismiss and Memorandum of Law dated November 27, 1996, Butler essentially joined in the arguments made by the CHRO in its Motion to Dismiss. The Respondent filed an Objection and Memorandum of Law dated November 29, 1996 responding to Butler's Motion to Dismiss. Butler filed a reply to Plaintiff's Objection dated December 20, 1996.

The Court (Allen, Judge Trial Referee) issued a written Memorandum of Decision dated January 30, 1997 granting the motions to dismiss, dismissing the action as to all parties. The Respondent filed a Motion to Reargue on February 19, 1997 and an Addendum to the Motion dated March 13, 1997, to which Butler filed an Objection dated March 6, 1997. The Motion to Reargue was denied in a Memorandum of Decision by the Court (Allen, STR) dated April 17, 1997.

Respondent's next venture was to the Appellate Court, filing an appeal on April 28, 1997. In the Superior Court, Respondent also filed a Motion to Reopen Judgment on June 3, 1997, to which Objections were filed on June 11, 1997 and August 21, 1997. The Court (Allen, STR) denied the Motion on October 15, 1997. Mean- while, in the Appellate Court, Respondent amended his appeal on March 12, 1998. On March 19, 1998, the CHRO, Butler and Lifton filed Motions to Dismiss the amended appeal. The Appellate Court granted the motions on May 20, 1998.

After the filing of briefs and oral argument, on June 29, 1999, the Appellate Court ruled against the Respondent, affirming the Superior Court's dismissal of his action. Respondent filed a Petition for Certification with the Supreme Court on July 15, 1999. That Court denied the Petition on September 9, 1999. Flanagan v. CHRO, 54 Conn.App. 89, cert. denied, 250 Conn. 925 (1999).

The basic thrust of the Appellate Court's opinion is that, contrary to his wishes, the Respondent was required to first exhaust his administrative remedies before the CHRO before turning for relief to the courts of this state. "With the exception of the claims under 42 U.S.C. ' 1983 and 1985, and (sic) the plaintiff's claims should properly be brought in the administrative proceedings before CHRO. It is clear that the plain-tiff has failed to exhaust his administrative remedies." Id. at 92. Regarding the federal claims, the Court noted that, in actions for injunctive relief, "the fundamental requirement of inadequacy of an available legal remedy...remains in full force." Id. at 95. The Court concluded: "The plaintiff cannot avoid the exhaustion requirement in his claim for injunctive relief." Id. Thus, the Court pointed Respondent back to the CHRO to litigate his issues.

With this chronology as backdrop, Respondent constructs his argument from a few basic materials. First, he argues that the proper version of CONN. GEN. STAT. ' 46a-83 is the statute as it read on the date Complainant filed her CHRO Complaint; that is, the version unamended by P.A. 96-241 and P.A. 98-245--the same version of CONN. GEN. STAT. ' 46a-83 under consideration by the Supreme Court in Angelsea Productions, Inc. v. CHRO, 236 Conn. 681 (1996)(Angelsea I). He contends that the CHRO derives no benefit from Angelsea Productions, Inc. v. CHRO, 248 Conn. 392 (1999)(Angelsea II), where the Supreme Court interpreted P.A. 96-241 to save complaints from dismissal on jurisdictional grounds where the CHRO was unable to complete its investigations in a timely manner, since "[t]hat case, in at least six separate in-stances, refers to complaints filed on or before January 1, 1996, and, therefore, the [Complainant'] complaint is not at all governed by, or effected (sic) by, Angelsea II." See Petition at 10.

Second, he concludes that "more than three years"; see Petition at 5-6; passed from the date the Complaint was filed, and yet the CHRO has failed in its statutory duty to make a finding of reasonable or no reasonable cause. Respondent sub-tracts from its computation of the time Complainant's Complaint has been pending before the CHRO "the period of time from September 30, 1996 through April 17, 1997", "when the matter was in Superior Court." See Petition at 4-5.

Respondent does not exclude the nearly 29 months his appeal was before the Appellate and Supreme Courts, because he "did not, pursuant to C.G.S. CONN. GEN. STAT. ' 52-476 or otherwise, apply to the Superior Court, the court rendering final judgment denying his injunction, for a prayer that a temporary injunction be continued pending appeal." See Petition at 4.

This last point is addressed first. Respondent's argument that the time he spent in the appellate courts must not be de- ducted is premised upon the Superior Court's having issued a temporary injunction, in which case the Superior Court's order would be automatically dissolved upon the granting of a "final hearing judgment...adverse to its continuance". See CONN. GEN. STAT. ' 52-476.

It is clear from the Superior Court proceedings that no temporary injunction ever issued, however. For a temporary injunction to issue, the posting of bond is a prerequisite, unless excused by the court. "No temporary injunction may be granted...until the party making application therefore gives bond, with surety satisfactory to the court or judge granting the injunction, to the opposite party....provided a bond need not be required when, for good cause shown, the court or a judge is of the opinion that a temporary injunction ought to issue without bond." See CONN. GEN. STAT. ' 52-472.

The Respondent posted no bond in this case. The Respondent was aware, however, of the need for a bond in the event a temporary injunction had been issued; the papers he filed with the Superior Court contain a proposed Bond that would have been presented to the Court for approval, had a temporary injunction issued. See Complaint at 32-33. The Case Detail entries by the Judicial Department indicate a "Decision not to proceed" in connection with Entry 101.00, which is Plaintiff's Motion for Temporary Injunction. See www.jud2.state.ct.us/Civil_Inquiry /DispDetail.asp.

That no temporary injunction was ever issued is confirmed by the actions of the parties. No party to the court proceedings on September 30, 1996 described the order entered by the Court as a temporary injunction, nor did Judge O'Neill. According to the judge, "I guess it would be like a federal bankruptcy stay--nothing happens." See Transcript at 3. What Judge O'Neill said, referring to the CHRO, is that "They're stopped right now [from taking any action on Complainant's complaint]. Nothing more in this case by C.H.R.O. for two weeks and until further order of this Court." See Transcript at 5. As Atty. Frechette earlier stated, "there's an agreement that there's no proceedings before the C.H.R.O. until further order of court." See Transcript at 4. The parties and the Court contemplated that the CHRO would take no further action without prior Court approval. Further, as stated earlier at p.6 of this Declaratory Ruling, Respondent's Motion for Temporary Injunction continued to appear on the short calendars after the stay had been entered on September 30, 1996, but was never pursued by Respondent afterward. Respondent him- self understood that a temporary injunction was not issued on September 30. Had it been, he would not have filed a 44-page Memorandum in Support of Application for Temporary Injunction on or about November 19, 1996; it would have been superfluous. The filing of a lengthy memorandum by Respondent is strong evidence that his Application for Temporary Injunction was not granted at that time. Thus, as indicated, the stay entered on September 30, 1996 was not a temporary injunction.

The Respondent points to no statute, other than CONN. GEN. STAT. ' 52-476, that an order of the kind here issued, as opposed to a temporary injunction, would not continue indefinitely. No court ever did authorize the CHRO to continue its investigation, and so the CHRO was barred from doing so on its own. Under Practice Book ' 61-11(a),

Motions to terminate stays are heard by "the judge who tried the case." See Practice Book ' 61-11(d). And so, the filing of the appeal in the Appellate Court operated to stay the Superior Court's ruling on the motion to dismiss. The Respondent never moved to lift the order of the Court regarding the stay, nor did the CHRO or any other party to the action. Thus, in the absence of a "further order of this Court", the reasonable expectation is that the stay stood in effect from the entry of the stay on September 30, 1996, until the appeal was finally resolved; here, by the denial of Respondent's Petition for Certification on September 9, 1999 by the Supreme Court.

The Respondent declares the CHRO's jurisdiction to have expired, based on his assertion that the CHRO had only 9 months to complete its investigation of the Complaint. He disavows that the Complainant may derive any benefit from P.A. 96-241, the General Assembly's response to Angelsea I; Angelsea II, which applied P.A. 96-241 to save the complaint there at issue from dismissal; or P.A. 98-245, which completed the General Assembly's consideration of the effect of time limits on the CHRO's jurisdiction.

The Respondent argues vigorously that the Complainant's Complaint derives no comfort from P.A. 96-241 or Angelsea II. See Petition at 7-10. According to Respondent, "Section 1 [of P.A. 96-241] has no applicability to the instant case." See Petition at 7. Respondent correctly asserts that the Complainant does not benefit from P.A. 96-241, ' 1, because her complaint was not filed with the CHRO before January 1, 1996. This was the provision under review in Angelsea II.

But P.A. 96-241 was not intended to be the General Assembly's final word on the subject of time limits governing the CHRO's processing of complaints of discrimination. In view of the fact that little time remained between the publication of Angelsea I on April 30 and the close of the legislative session on May 8--only some 8 days--the legislature did not have the time to fashion a fully considered response. For this reason, the General Assembly inserted a provision in P.A. 96-241 to revisit the whole issue at a later date, after first polling the views of all constituencies involved in CHRO complaint processing. Section 6 of P.A. 96-241 formed an advisory committee, overseen by the Connecticut Law Revision Commission, consisting of representatives of the Governor and other high ranking state officials; members of the complainants' and respondents' bars; and CHRO personnel.

What eventually emerged from this dialog was P.A. 98-245. In P.A. 98-245, the General Assembly spelled out in even more certain terms that Angelsea I did not enjoy legislative support and did not express the meaning of CONN. GEN. STAT. §§ 46a-83 or 46a-84.³ Section 8(a), codified as CONN. GEN. STAT. ' 46a-82c(a), states that "[n]otwithstanding the failure of the [CHRO] to comply with the time requirements of section 46a-83...and section 46a-84...with respect to a complaint before the [CHRO] the jurisdiction of the [CHRO] over any such complaint shall be retained."⁴ Section 14 states the Act shall "take effect July 1, 1998, and shall be applicable to all cases pending with the [CHRO] or in the courts and cases filed on or after said date."

The key language is the prepositional phrases, "with respect to a complaint before the commission". The question needing resolution is whether Complainant's complaint was still "before the commission", within the meaning of Section 8(a), when P.A. 98-245 took effect on June 8, 1998. If so, Complainant is entitled to the benefit of the remainder of the provision, and "the jurisdiction of the commission" over her "complaint shall be retained."⁵

Complainant's Complaint falls squarely within P.A. 98-245. Her Complaint was still before the CHRO on July 1, 1998. On that date, the Respondent was pursuing his judicial remedies; his appeal was in the Appellate Court. At that time, the CHRO had only been theoretically able to investigate the Complaint a bit over six months, from March 19, 1996 to September 30, 1996, the date the stay entered. Even if Respondent is correct that the Complainant is not entitled to the benefit of P.A. 96-241, ' 4, which increased the time for the CHRO to investigate from 9 months plus one 3-month extension to 12 months plus two 3-month extensions, the CHRO did not transgress the time limit. More realistically, the CHRO was permitted to employ the time frames for investigating cases found in P.A. 96-241, ' 4. As the Court notes in Angeslea II, 248 Conn. at 408 n.12: "A statutory amendment may be applied to cases pending at the time of its enactment if the legislature so intends and the statute doe not enact a substantive change in the parties' rights." Our Supreme Court has already applied P.A. 96-241 to save the complaint in Angelsea II. The Respondent does not address why P.A. 98-245, which merely clarified the legislative intent of P.A. 96-241 to maintain the CHRO's jurisdiction over complaints not investigated in a timely manner, may not be similarly applied retroactively to save this Complaint, even if the CHRO arguably strayed from the time limits set in CONN. GEN. STAT. ' 46a-83.

Although Respondent has not made the argument expressly, he implies that somehow the CHRO lost jurisdiction automatically by the passage of time, and that the CHRO's jurisdiction, once lost, could not be regained by P.A. 96-241 or P.A. 98-245. Angelsea II forestalls this argument. The Angelsea litigation involved a complaint filed with the CHRO on April 11, 1991. Angelsea I, 236 Conn. at 683. Although the respondent had filed a motion to dismiss on March 3, 1993 alleging a violation of CONN. GEN. STAT. ' 46a-83; id.; and a second motion to dismiss on November 29, 1993 alleging a violation of CONN. GEN. STAT. ' 46a-84; id. at 684; the loss of the CHRO's jurisdiction was not self- executing under these statutes, and the complaint was still pending before the CHRO. The "effect of P.A. 96-241, ' 1(a), was to provide the commission with jurisdiction over complaints filed prior to January 12, 1996, and still pending before the commission on June 6, 1996, the date on which P.A. 96-241 became effective." Angelsea II, 248 Conn. at 402. According to the Court, "[i]t is undisputed that the hearing officer appointed to adjudicate...the complaint did not render a decision dismissing her complaint on or before June 6, 1996...." Id. at 403. In other words, it would take an affirmative act by the CHRO dismissing a complaint to defeat P.A. 96-241. Thus, if a complaint is still "pending" before the CHRO, for the purpose of P.A. 96-241, even though the time for the CHRO to investigate or hold a hearing has expired, the same result should hold under P.A. 98-245: a complaint should be still "before" the CHRO, in the language of P.A. 98-245, ' 8(a), even if the time limit for the CHRO to complete an investigation under CONN. GEN. STAT. ' 46a-83 has expired, unless the CHRO has affirmatively acted to dismiss the complaint. Respondent concedes the CHRO has not done that in this case.

At the time the CHRO was again free to investigate the Complainant's Complaint, P.A. 98-245 had long been in effect. The Respondent did not file his Motion to Dismiss based on the CHRO's purported violation of CONN. GEN. STAT. ' 46a-83 until May 12, 2000. Even if the purported violation goes to the subject matter jurisdiction of the CHRO over Complainant's Complaint,⁶ it is clear from Angelsea II that the General Assembly may properly reach out to save such cases from dismissal by subsequent enactments. By filing the motion to dismiss, Respondent expressly acknowledges that Complainant's complaint is still before the CHRO; otherwise he would not have filed the motion.

Because this case falls within P.A. 98-245, ' 8(a), "the jurisdiction of the commission" over Complainant's "complaint shall be retained."⁷

Adopted by a majority vote of the Commissioners of the Commission on Human Rights and Opportunities present and voting at a Special Meeting of the Commission held on September 11, 2000, at Hartford, Connecticut.

Attest: Andrew Norton, Acting Chairperson
Date: (September 12, 2000

Footnotes:

1. The CHRO may take notice of the contents of its own files and the files of the Superior Court. Declaratory Ruling on the Petition for Declaratory Ruling Filed by Sports One, Inc., CHRO No. 9730219 at 8 (December 8, 1997). See, e.g., State v. McDermott, 190 Conn. 20, 23 (1983).

2. This synopsis does not catalog every motion, objection or other document filed in connection with this matter, either with the CHRO or the Superior Court. A more complete recounting of the papers filed in the Superior Court appears in the Judgment dated January 19, 1998.

3. P.A. 98-245 enjoyed unanimous support, shown not only in the lopsided margins by which it cleared both the Senate (36-0) and House of Representatives (142-0), but also among the oftentimes fractious constituencies involved in CHRO matters. As one speaker responded to a question posed by Rep. Farr at the committee hearing--"Isn't there anybody opposed to this?"--"No one that we're aware of who is in full possession of their (sic) mental capacity." See Appendix A32.

4. That these time limits are not jurisdictional is hardly sur- prising in view of the intent of the legislators who enacted them. Rep. Tulisano, who was a sponsor of P.A. 89-332, the leg-islation which introduced the time limits, explained that one purpose was to ease the difficulty of securing mandamus in the event that the CHRO did not meet them. It seems hardly imaginable that these time limits, which were put in place to benefit persons complaining of discrimination, would boomerang in Angelsea and return to harm them. The Court does not refer to Rep. Tulisano's remarks in Anglesea I.

5. Unfortunately, although Respondent does mention P.A. 98-245; see Petition at 910; nowhere does he offer an analysis of the language most pertinent to this ruling, P.A. 98-245, ' 8(a).

6. Angelsea I did not actually determine whether the requirement was subject matter jurisdictional or not. Angelsea I, 236 Conn. at 700 n.13.

7. Even assuming that Respondent correctly interprets the re- quirements of law and that dismissal is mandatory, it is not at all clear that CONN. GEN. STAT. ' 46a-83 would allow Respondent to escape all liability for his alleged conduct. Angelsea I instructs that the CHRO can always issue a release of juris-diction to preserve a discrimination claim. Angelsea I, 236 Conn. at 699-700. Under Angelsea II, the time for bringing such a claim may be tolled. Angelsea II, 248 Conn. at 403 n.9.