LL3-LLI-CV18-5011402-S
`MARY BAGNASCHI,
` PLAINTIFF,
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` v.
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`STATE OF CONNECTICUT, ET AL.
` DEFENDANTS
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`SUPERIOR COURT
`
`JUDICIAL DISTRICT OF
`LITCHFIELD
`AT TORRINGTON
`
`FEBRUARY 13, 2019
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`I.
`
`Defendant State of Connecticut's Reply Memorandum in Support of its
`Motion to Dismiss
`
`Plaintiff Could Have Appealed the CHRO's Decision Holding that
`the Torrington Housing Authority is Not a Quasi-Public Agency
`and Cannot Use this Action to Bypass the UAPA
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`The foundation of Plaintiff's Complaint is her request that this Court declare
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`that "[t]he Torrington Housing Authority [("the THA")] is a quasi-governmental
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`agency, subject to the provisions of Connecticut General Statute § 4-61dd." Compl., p.
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`5, ¶ 1. The phrase "quasi-governmental agency" does not appear in § 4-61dd, but the
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`phrase "quasi-public agency" does, and Plaintiff's Complaint otherwise makes clear
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`that the issue Plaintiff is asking this Court to address is whether the THA is a "quasi-
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`public agency" for purposes of § 4-61dd. See id. at ¶¶ 11-12.
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`Plaintiff has already raised this issue. In her Objection to the State's Motion to
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`Dismiss, Plaintiff acknowledges—as she must—that "[t]he CHRO dismissed"
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`Plaintiff's previous case in 2006 because the THA "was not a 'quasi-public agency',
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`over which the CHRO had jurisdiction." Plaintiff's Objection to Defendant State of
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`Connecticut's Motion to Dismiss, p. 2 (No. 108.00) ("Pl's Obj."). Plaintiff acknowledges
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`that she did not appeal that decision. That should be dispositive here. As the State
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`argued, the Supreme Court has made clear that a party with an available Uniform
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`1
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`MARY BAGNASCHI,
` PLAINTIFF,
`
` v.
`
`STATE OF CONNECTICUT, ET AL.
` DEFENDANTS
`
`
`:
`:
`:
`:
`:
`:
`:
`
`SUPERIOR COURT
`
`JUDICIAL DISTRICT OF
`LITCHFIELD
`AT TORRINGTON
`
`FEBRUARY 13, 2019
`
`I.
`
`Defendant State of Connecticut's Reply Memorandum in Support of its
`Motion to Dismiss
`
`Plaintiff Could Have Appealed the CHRO's Decision Holding that
`the Torrington Housing Authority is Not a Quasi-Public Agency
`and Cannot Use this Action to Bypass the UAPA
`
`The foundation of Plaintiff's Complaint is her request that this Court declare
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`that "[t]he Torrington Housing Authority [("the THA")] is a quasi-governmental
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`agency, subject to the provisions of Connecticut General Statute § 4-61dd." Compl., p.
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`5, ¶ 1. The phrase "quasi-governmental agency" does not appear in § 4-61dd, but the
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`phrase "quasi-public agency" does, and Plaintiff's Complaint otherwise makes clear
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`that the issue Plaintiff is asking this Court to address is whether the THA is a "quasi-
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`public agency" for purposes of § 4-61dd. See id. at ¶¶ 11-12.
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`Plaintiff has already raised this issue. In her Objection to the State's Motion to
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`Dismiss, Plaintiff acknowledges—as she must—that "[t]he CHRO dismissed"
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`Plaintiff's previous case in 2006 because the THA "was not a 'quasi-public agency',
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`over which the CHRO had jurisdiction." Plaintiff's Objection to Defendant State of
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`Connecticut's Motion to Dismiss, p. 2 (No. 108.00) ("Pl's Obj."). Plaintiff acknowledges
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`that she did not appeal that decision. That should be dispositive here. As the State
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`argued, the Supreme Court has made clear that a party with an available Uniform
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`1
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`Administrative Procedure Act ("UAPA") appeal, like Plaintiff, cannot fail to take an
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`appeal and then bypass the UAPA through an independent action like this one.
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`Defendant State of Connecticut's Memorandum in Support of its Motion to Dismiss, pp.
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`4-5 (No. 103.00) ("MIS State's MTD").
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`Plaintiff offers three arguments in response. See Pl's Obj., p. 2 (listing the
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`arguments). None of them has any merit.
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`Two of Plaintiff's three arguments hinge on Plaintiff's statement that she could
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`not have appealed the 2006 CHRO decision. See id. (numbers 2 and 3). Plaintiff's
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`argument that she could not appeal is based on a block quote of a portion of § 46a-
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`94a(a) (p. 4) that omits the key language, which appears in the sentence before
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`Plaintiff's block quote begins.
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`Section 46a-94a is entitled, in part, "Appeal to Superior Court from order of
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`presiding officer" and the first sentence of § 46a-94a(a)—which Plaintiff omits—
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`expressly provides that "[t]he commission, any respondent or any complainant,
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`aggrieved by a final order of a presiding officer, may appeal to the Superior
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`Court in accordance with section 4-183." Conn. Gen. Stat. § 46a-94a (emphasis
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`added); see also Conn. Gen. Stat. § 4-61dd(e)(2)(A) (allowing for 4-183 appeal of
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`decision by human rights referee). Plaintiff was a complainant in 2006, and the
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`dismissal of her claim by the presiding officer was a final order that allowed Plaintiff
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`an opportunity to file a UAPA appeal. See Ruling on Motion to Dismiss in Bagnaschi-
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`Maher v. Torrington Housing Authority, 2006 WL 2965500 (CHRO March 3, 2006)
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`("CHRO Dismissal") (Exh. 1 to MIS State's MTD) (dismissal ruling by Human Rights
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` 2
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`Referee); see also Conn. Gen. Stat. Ann. § 46a-57(d) (providing for a Human Rights
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`Referee "serving as a presiding officer"). The State cited authority to that effect in
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`support of its Motion to Dismiss, and Plaintiff cited none to the contrary in her
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`Objection. See MIS State's MTD, p. 4 (citing CHRO ex rel Vargas v. State Dep't of
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`Correction, 2014 WL 564478, at *1 (Conn. Super. Ct. Jan. 10, 2014) (Prescott, J.)
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`("Vargas") (analyzing appeal from CHRO's dismissal of complaint for lack of subject
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`matter jurisdiction)).1
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`Taken together, § 46a-94a(a), § 4-61dd(e)(2)(A) and Vargas establish that
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`Plaintiff could have appealed the CHRO's 2006 decision under the UAPA but failed to.
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`The issue addressed in the CHRO's decision is the same issue Plaintiff asks this Court
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`to address here, namely, whether "[t]he Torrington Housing Authority is a quasi-
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`[public] agency, subject to the provisions of Connecticut General Statute § 4-61dd."
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`Compl., p. 5, ¶ 1; see CHRO Dismissal, pp. 1-4 (analyzing the issue and holding that
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`the THA "is not a quasi-public agency" for purposes of § 4-61dd). Therefore, this Court
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`lacks jurisdiction. See, e.g., Harwinton Drilling & Eng'g Co. v. Pub. Utilities Control
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`Auth., 188 Conn. 90, 98 (1982).
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`Plaintiff's remaining arguments are based on pure ipse dixit. Ultimately,
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`Plaintiff's Complaint makes clear that Plaintiff is asking this Court to reach the
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`opposite conclusion that the CHRO's Presiding Officer reached in a decision that
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`Plaintiff could have appealed to this Court but chose not to.
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`1 The limitations on the right of appeal on which Plaintiff's argument relies relate to
`dismissals by the commission under § 46a-83, as opposed to final orders by presiding
`officers such as the 2006 order issued by the Human Rights Referee dismissing
`Plaintiff's case. See Pl's Obj., p. 4.
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` 3
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`II. Collateral Estoppel Independently Precludes Plaintiff from Re-
`Litigating the Issue of Whether the THA is a Quasi-Public Agency
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`Plaintiff rightly does not dispute that collateral estoppel may properly be raised
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`in a Motion to Dismiss or that administrative decisions like the CHRO's decision
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`holding that the THA is not a quasi-public agency for purposes of § 4-61dd can have
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`preclusive effect. See MIS State's MTD, pp. 5-7. Rather, Plaintiff primarily argues that
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`collateral estoppel cannot bar her attempt to re-litigate the issue because "this
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`Defendant, the State of Connecticut, was not a party, and was not in privity, during
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`any prior litigation on the issues alleged." Pl's Obj., p. 8. Again, Plaintiff's argument
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`lacks merit.
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`"[P]rivity only concerns the party against whom collateral estoppel is claimed."
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`In re Kyllan V., 180 Conn. App. 132, 141 n.3 (2018). That is because "'the concept
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`exists to ensure that the interests of the party against whom collateral estoppel . . . is
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`being asserted have been adequately represented because of his purported privity with
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`a party at the initial proceeding.'" Id. (quoting Mazziotti v. Allstate Ins. Co., 240 Conn.
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`799, 813 (1997) (emphasis in Kyllan V.)). Thus, the relevant question here is whether
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`Plaintiff today (the party against whom collateral estoppel is being asserted) is in
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`privity with herself from 2006. She is. Plaintiff offers no argument to the contrary, nor
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`would any such argument be credible.
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`Plaintiff also argues that collateral estoppel should not apply because "the issue
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`before the CHRO . . . was distinctly different from the issue that [Plaintiff] raises
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`before this court." Pl's Obj., p. 8. That argument does not survive scrutiny. It is true
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`that Plaintiff's 2006 claim involved alleged employment discrimination by the THA
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` 4
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`under § 4-61dd while this action purportedly involves whether "Plaintiff is able to file
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`a complaint with the Auditors of Public Accounts under § 4-61dd against the [THA] to
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`report corruption in public government." Id. at 9. But there is no separate definition of
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`"quasi-public agency" for employment claims under § 4-61dd versus reporting under §
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`4-61dd. The same analysis applies to both. The THA was already held to not be a
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`"quasi-public agency" for employment claims in Plaintiff's 2006 proceeding, and
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`Plaintiff cannot avoid collateral estoppel and get an opportunity to re-litigate that
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`issue by simply saying that this time she wants to know the answer to the same legal
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`question for a different reason. For example, in Lyon v. Jones, 291 Conn. 384, 408–09
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`(2009), the Supreme Court held that a district court's ruling on federal law
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`employment claims had preclusive effect on a plaintiff's state law employment claims
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`in state court. In so holding, the Supreme Court reasoned that "[b]ecause the issues
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`resolved in the federal claims are the same as those that must be resolved in the state
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`law claims, the plaintiff is collaterally estopped from relitigating those issues." Id. The
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`Supreme Court's reasoning applies with equal, if not greater, force here—the issue of
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`whether the THA is a quasi-public agency is the same under any provision of § 4-61dd.
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`Again, Plaintiff cites no authority to the contrary.
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`Plaintiff also argues that the CHRO's holding that the THA is not a quasi-
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`public agency under § 4-61dd "can be considered dicta" because even if the CHRO
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`determined the issue "the judgment in this case is not dependent on determination of
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`that issue." Pl's Obj., p. 10. Plaintiff misapprehends how dicta are determined. The
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`question of whether a given statement is dictum is based on whether the statement
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` 5
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`was necessary to the holding in the proceeding in which the statement was made.
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`There can be no question that the Presiding Officer's determination that the THA is
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`not a quasi-public agency was necessary to his granting of the motion to dismiss in
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`2006—it was the only issue presented, and the Presiding Officer expressly dismissed
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`the case because "the THA is not a quasi-public agency" under § 4-61dd. CHRO
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`Dismissal, p. 3. Therefore, that necessary determination is entitled to collateral
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`estoppel effect and Plaintiff cannot re-litigate the issue here.
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`III. Plaintiff Lacks Standing to Demand an Investigation of the THA
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`Plaintiff does not dispute that she has the burden to satisfy justiciability
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`requirements to obtain declaratory relief. MIS State's MTD, p. 7. Nor does Plaintiff
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`dispute that "[i]t is well-established both that '[a] plaintiff has no constitutionally
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`protected right to a proper investigation' and that 'a [private] citizen lacks standing to
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`contest the policies of the prosecuting authority when he himself is neither prosecuted
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`nor threatened with prosecution . . . because a private citizen lacks a judicially
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`cognizable interest in the prosecution or nonprosecution of another.'" MIS State's
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`MTD, p. 8 (quoting Stocking v. Austin, 2016 WL 3452028, at *4 (Conn. Super. Ct. June
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`2, 2016) (Wiese, J.)). It follows that Plaintiff lacks standing to demand an
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`investigation of the THA.
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`In response, Plaintiff represents to the Court that she "is not 'demanding an
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`investigation of the Torrington Housing Authority'" and that "[s]uch a 'demand'
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`appears nowhere in her Complaint." Pl's Obj., p. 11. Plaintiff's representations are
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`puzzling. Plaintiff's Complaint expressly "seeks a declaratory judgment from this
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`court" that inter alia "the Attorney General and the Auditors of Public Accounts [are]
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`required to accept and to investigate" any complaint Plaintiff files as a former
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`employee of the THA. Compl., ¶ 21 (emphasis added); see also id. at p. 5, ¶ 1 (using the
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`same language). Plaintiff also asks this Court to declare that when a complaint is filed
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`regarding the THA "an investigation is required." Id. at ¶ 22.
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`Plaintiff does not cite any authority to rebut the State's argument that well-
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`established precedent holds that Plaintiff lacks standing to ask this Court to declare
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`that the State is required to investigate the THA. Nor is the State aware of any
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`authority that would support Plaintiff's claim that she has standing here. Plaintiff is
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`explicitly asking this Court to compel the State to investigate alleged "corruption or
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`crimes" involving the THA. Id. at ¶ 8. The Appellate Court has held that "such a right
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`is not recognized in the law" and "reasoned that it would contravene public policy 'to
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`allow every private citizen to force the prosecutor to proceed with a case in pursuit of a
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`private objective.'" Kelly v. Dearington, 23 Conn. App. 657, 662 (1990) (quoting
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`Dohaish v. Tooley, 670 F.2d 934 (10th Cir.), cert. denied, 459 U.S. 826 (1982)). That
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`was true even where "a father sought to compel the state's attorney to prosecute a
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`man who allegedly killed his son." Id. (discussing Dohaish). There is no evident reason
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`why the result should be different here, and Plaintiff offers none.
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`In Plaintiff's Objection, she indicates—for the first time—that she has standing
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`because "a declaratory ruling may affect her ability . . . to obtain habeas or other relief
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`from her criminal conviction, which stemmed from her attempt to file a complaint
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` 7
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`under §5-61dd [sic2]." Pl's Obj., p. 12. That argument should fail for multiple reasons.
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`First, Plaintiff does not make any allegations regarding her criminal conviction in her
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`Complaint, and that therefore cannot be a basis to avoid this Motion to Dismiss. See,
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`e.g., Burton v. Connecticut Siting Council, 161 Conn. App. 329, 346–48 (2015) (trial
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`court properly declined to consider plaintiff's argument that she was aggrieved based
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`on notice that was not referenced until after motion to dismiss was filed). Second, even
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`if any impact on Plaintiff's criminal conviction could be considered, any such impact
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`would be too speculative to establish standing. See, e.g., Kelly, 23 Conn. App. at 662
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`(holding that a criminal defendant did not have standing to demand the investigation
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`of the state's key witness on perjury charges and noting that the criminal defendant
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`"suffered, at best, an abstract and speculative injury because it cannot be known what
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`impact the arrest of Allen for perjury would have had on Mooney's trial").
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`IV. Section 4-61dd Does Not Create a Private Right of Action
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`Plaintiff acknowledges—as she must—that "[t]here is a presumption that a
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`statute does not create a private right of action" but claims that presumption is
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`overcome as to § 4-61dd. Pl's Obj., p. 12. Plaintiff is incorrect.
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`Like Plaintiff's argument that she could not have appealed the CHRO's
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`decision, Plaintiff's argument that she is part of the class of persons benefitted under §
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`4-61dd relies on an omission of the critical statutory language. Id. at 13. Plaintiff
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`claims she is part of the class because "Any person" may report corruption, and
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`Plaintiff is any person. Id. (emphasis in Pl's Obj.). But § 4-61dd's language does not
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`2 Plaintiff presumably intends to refer to § 4-61dd.
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` 8
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`stop at "any person." Rather, the remainder of the sentence goes on to provide, in
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`pertinent part, that "[a]ny person having knowledge of any matter involving
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`corruption, unethical practices, violation of state laws or regulations,
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`mismanagement, gross waste of funds, abuse of authority or danger to the
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`public safety occurring in any state department or agency, [or] any quasi-
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`public agency, as defined in section 1-120." Conn. Gen. Stat. § 4-61dd(a)
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`(emphasis added). Thus, to come within the class, it is not enough that Plaintiff is
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`"any person," she must be a person "having knowledge" of issues in a covered entity.
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`See id. The CHRO has held, based on the logic of a decision from this Court, that the
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`THA is not a covered entity and it follows that Plaintiff is not within the class § 4-
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`61dd is intended to benefit.
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`That alone would be enough to establish that this is not one of the rare
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`occasions where a statute creates an implied private right of action, but Plaintiff also
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`cannot meet the second or third parts of the analysis. Plaintiff's argument that other
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`whistleblower statutes create private rights of action against employers for retaliation
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`cannot support her claims against the State for multiple reasons. One is that the State
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`was not Plaintiff's employer and was not in a position to take retaliatory employment
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`action against Plaintiff—Plaintiff acknowledges as much when she argues that "the
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`State of Connecticut, was not a party, and was not in privity" with the THA during
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`Plaintiff's prior litigation. Pl's Obj., p. 8. Another is that Plaintiff has already invoked
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`§ 4-61dd's employment retaliation provision, and that led to the CHRO's decision
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`dismissing Plaintiff's claim because the THA is not a covered entity. Plaintiff cannot
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` 9
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`re-litigate that issue here, both because this Court lacks jurisdiction over such an
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`attempted UAPA bypass and because Plaintiff is collaterally estopped.
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`The State's only role under § 4-61dd that relates to Plaintiff is its investigatory
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`role. Section 4-61dd gives the State broad discretion in performing that role, and gives
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`no indication that private individuals should be able to seek court intervention to force
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`an investigation. Plaintiff represents that she "is not seeking
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`'to force an
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`investigation'" and that "the Attorney General's 'discretion' has nothing to do with
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`whether a person has a private right of action." Pl's Obj., p. 13. The first part of
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`Plaintiff's representation is belied by the language in her Complaint discussed above
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`that explicitly asks this Court to declare that the State is required to investigate. See
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`Compl., ¶¶ 21 & 22. The second part is belied by this Court's decision holding that "no
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`private right of action exists for an alleged violation of [a] town's code of ethics" based
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`in part on the ethics commission's "absolute discretion in the selection of which
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`complaints to prosecute." Stadler v. Town of New Canaan, 2015 WL 1588279, at *4
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`(Conn. Super. Ct. Mar. 13, 2015) (Heller, J.). The State cited that decision, and
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`Plaintiff neither seeks to distinguish it nor offers any contrary authority.
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`Plaintiff's references to the Supreme Court's decision recognizing a private right
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`of action for damages under Article First, § 9 of the Connecticut Constitution are
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`inapposite. Pl's Obj., pp. 15-18. Plaintiff is not seeking damages here, and sovereign
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`immunity would bar any damages claim against the State. In addition, neither the
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`constitutional provisions Plaintiff references nor Plaintiff's criminal conviction are
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`referenced in Plaintiff's Complaint. See, e.g., Burton, 161 Conn. App. at 346–48.
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`DEFENDANT,
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`STATE OF CONNECTICUT
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`By: /s/ Robert J. Deichert
` Robert J. Deichert (421663)
` Assistant Attorney General
` 55 Elm Street
` P.O. Box 120
` Hartford, CT 06141-1020
` Robert.Deichert@ct.gov
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`CERTIFICATION OF SERVICE
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`I hereby certify, pursuant to Practice Book §§ 10-12 through 10-17 that a copy of
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`the above was mailed via first class mail postage pre-paid on February 13, 2019 or e-
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`mailed to all counsel and pro se parties of record:
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`Deborah G. Stevenson
`P.O. Box 704
`Southbury, CT 06488
`Stevenson@dgslawfirm.com
`Attorney for Plaintiff
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`Corporation Counsel—City of Torrington
`140 Main Street
`Torrington, CT 06790
`victor muschell@torringtonct.org
`Attorney for Mayor Elinor Carbone
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`Kainen, Escalera & McHale PC
`21 Oak Street
`Hartford, CT 06106
`jmcquade@kemlaw.com
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` /s/ Robert J. Deichert
` Robert J. Deichert
` Assistant Attorney General
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