THE SAME POLICY WHICH DEMANDS THE HOLDING OF PUBLIC OFFICERS TO STRICT ACCOUNT IN MATTERS OF PUBLIC TRUST, ALSO DEMANDS THEIR PROTECTION AGAINST GROUNDLESS ASSAULTS UPON THEIR INTEGRITY IN THE DISCHARGE OF PUBLIC DUTY.1
Public officials, the insurers who indemnify them and the attorneys who represent them, are familiar with the doctrine of qualified immunity under federal law. They may, however, be less familiar with the doctrine of qualified immunity under Connecticut law and the uncertainty in a defendant's right to take an interlocutory appeal from an adverse pretrial ruling.
Under the appropriate circumstances, the federal doctrine immunizes an official from suit on a civil rights claim. Federal courts permit interlocutory appeals from federal qualified immunity rulings provided the case presents a question of law. Although Connecticut state courts permit interlocutory appeals from adverse pretrial rulings on collateral estoppel, absolute immunity and sovereign immunity,2 the ability of a defendant to take an interlocutory appeal from an adverse pretrial ruling on qualified immunity appears to be an open question.3
This Essay examines whether the public policy behind qualified immunity at the federal and state levels justifies the difference in interlocutory appeal rights. It concludes that given the nearly identical goals of the doctrines at the state and federal levels, a defendant, under defined circumstances, should have the ability to take an interlocutory appeal from an adverse pretrial ruling on a qualified immunity defense under Connecticut law.
I. QUALIFIED IMMUNITY UNDER CONNECTICUT LAW
The Connecticut Supreme Court first recognized a version of qualified immunity in 1920 in Wadsworth v. Middletown.4 In that case, the court concluded that since certain public officials were "engaged upon a governmental duty…so long as they act in good faith, in the exercise of an honest judgment, and not in the abuse of their discretion, or maliciously or wantonly, they cannot be held liable."5 Wadsworth acknowledged that the affairs of the government cannot be conducted with absolute exactitude and that "timidity and doubt" would govern officials' performance of their public duties if they acted in the consciousness that personal liability might follow no matter how closely they followed their best discretion.19 177 F.2d 579 (2d Cir. 1949).20Bivens v. Six Unknown Named Agents of the Fed. Bureau
In defining the parameters of qualified immunity, Connecticut courts have recognized that municipal employees are immune from negligence claims based on governmental acts or omissions involving the exercise of discretion or judgment,7 as opposed to a ministerial act.8 The hallmark of a governmental or discretionary act is that it requires the exercise of judgment.9 On the other hand, ministerial acts are performed in a prescribed manner without the exercise of judgment or discretion as to the propriety of the action.10 The determination of whether qualified immunity applies is often a question of law.11 For example, Connecticut courts have consistently held that the acts and omissions of police officers in the exercise of their duties are discretionary in nature.12
II. QUALIFIED IMMUNITY UNDER FEDERAL LAW
A. General Principles
Although they are not identical, the Connecticut Supreme Court has described Connecticut qualified immunity as being in "accord[ ]" with its federal counterpart.13 Under the federal qualified immunity doctrine, public officials performing discretionary functions are shielded from liability for civil damages if their conduct does not violate clearly established statutory or constitutional rights that a reasonable person would have known.14 A public official is entitled to qualified immunity: (1) if the conduct attributed to him is not prohibited by federal law; (2) where that conduct is so prohibited, if the plaintiff's right not to be subjected to such conduct by the defendant was not "clearly established" at the time of the conduct; or (3) if the defendant's action was objectively reasonable in light of the legal rules that were clearly established at the time it was taken.15
This analysis is to be approached sequentially.16 Accordingly, the first step in the analysis is to determine whether the plaintiff has alleged the deprivation of an actual constitutional right.17
B. The Public Policy Underlying Qualified Immunity and the Right to an Interlocutory Appeal
Federal qualified immunity strikes a balance between the need to provide a means for the vindication of constitutional guarantees and the societal costs that inhere in litigation against public officials.18 Chief Judge Learned Hand's opinion in Gregoire v. Biddle19 is considered the "classic modern case" on qualified immunity.20 In it, he recognized that immunity for public officials is necessary because it is impossible to know whether a civil rights claim is well founded.
In 1985, the Supreme Court in Mitchell v. Forsyth,22 held that an order denying a defendant's summary judgment motion based on qualified immunity is an immediately appealable "collateral order," where the issue appealed concerned whether certain undisputed facts established a violation of a "clearly established" law. The Court recognized that such an order was "effectively unreviewable" because an appeal after a trial would be too late to guard the most important purpose of qualified immunity, shielding public officials not only from liability, but from having to stand trial.23 The Court also held that an order denying summary judgment under these circumstances was conclusive on the issue of the defendant's immunity from suit.24
However, not all orders denying qualified immunity are immediately appealable. In 1995, the Supreme Court in Johnson v. Jones25 held that a defendant cannot immediately appeal a denial of summary judgment where the "order in question resolve[s] a fact-related dispute about the pretrial record, namely, whether or not the evidence in the pretrial record was sufficient to show a genuine issue of fact for trial."26 On the other hand, the issue of whether the plaintiff has asserted a violation of a constitutional right at all is a "purely legal question."27 Moreover, a public official may also "obtain a purely legal ruling from the district court by stipulating to the plaintiff's version of the facts for purposes of the qualified-immunity-based summary judgment motion."28
III. EXTENDING INTERLOCUTORY APPEAL RIGHTS TO PRETRIAL RULINGS ON QUALIFIED IMMUNITY UNDER CONNECTICUT LAW
At the beginning of the twenty-first century, our society finds itself relying more extensively on public officials. In the face of a public interest that demands action from public officials, including municipal employees, those officials should be encouraged to act and should be protected when they make an honest mistake. So assuming no fact-issue, why can a defendant whose dispositive motion on (federal) qualified immunity grounds, take an interlocutory appeal from a federal district court's ruling; but apparently not when his motion is based on (state) qualified immunity and his case is in state court? Perhaps the more important question is whether a difference in appeal rights is appropriate? It is not.
Given the nearly identical goals underlying qualified immunity in both the federal and state systems, assuming the issue can be resolved as a question of law, a public official should have a right to take an interlocutory appeal from the denial of a dispositive motion based on state qualified immunity. The Wadsworth court's reasoning is almost identical to the reasoning in Gregoire. Absent immunity for discretionary acts, the few individuals who would want to serve as public officials would act, if at all, with "timidity and doubt."
Accordingly, the Connecticut Supreme and Appellate Courts should recognize that public officials have a right to take an immediate appeal from an adverse pretrial ruling on the issue of qualified immunity under state law. The recognition of such a right would be consistent with the reasoning in the case law that establishes interlocutory appeal rights in the contexts of the collateral estoppel defense, absolute immunity and sovereign immunity. For example, in Heritage Village Master Association, Inc v. Heritage Village Water Co., the Appellate Court held that the denial of an immediate appeal would frustrate the policy behind the doctrine of collateral estoppel "which seeks to limit a party to a single opportunity to litigate a disputed issue."29 Similarly, interlocutory appeals from adverse rulings on absolute immunity and sovereign immunity have been allowed because "the order or action so concludes the rights of the parties that further proceedings cannot affect them."30 Again, because the policy behind qualified immunity is to shield an official from suit, the rights of the parties vis-à-vis the immunity issue are concluded with an adverse pretrial ruling.
Moreover, the recognition of an interlocutory appeal right would be consistent with the Appellate Court's recent holding, in Carrubba v. Moskowitz, that court-appointed attorneys are entitled to qualified immunity with respect to actions taken in furthering the representation of minor children and that that immunity shields them from suit.31 The Carrubba court relied exclusively on language from United States Supreme Court decisions in describing the contours of qualified immunity. With qualified immunity under Connecticut law, like its federal counterpart, absent a right to an interlocutory appeal, public officials will lose immunity from trial where a plaintiff's claim arises out of a discretionary act.
1 Flanagan v. Blumenthal, 265 Conn. 350, 361 (2003) (Sullivan, C.J., concurring) (citation and quotation marks omitted).
2 Chadha v. Charlotte Hungerford Hosp., 77 Conn. App. 104, 110, cert. granted, 265 Conn. 902 (2003) (absolute immunity); Martinez v. Dep't of Pub. Safety, 263 Conn. 74, 77 n.5 (2003) (sovereign immunity); Heritage Village Master Ass'n, Inc v. Heritage Village Water Co., 30 Conn. App. 693, 697-98 (1993)(collateral estoppel).
3 As such, it would be subject to an analysis under the final judgment rule. See State v. Curcio, 191 Conn. 27 (1983).
4 94 Conn. 435 (1920). See Gordon v. Bridgeport Housing Auth., 208 Conn. 161, 166 (1988) (identifying Wadsworth as origin of qualified immunity).
5 Wadsworth, 94 Conn. at 439.
6 Id. at 440.
7 Elliot v. Waterbury, 245 Conn. 385, 411 (1998); Doe v. Bd. of Educ., 76 Conn. App. 296, 300 (2003).
8 Elliot, 245 Conn. at 411; Purzycki v. Fairfield, 244 Conn. 101, 107 (1998).
9 See Gordon, 208 Conn. at 167-68.
10 Id.
11 Id. at 170. But see Lombard v. Edwards J. Peters, Jr., P.C., 252 Conn. 623, 628 (2000).
12 See, e.g., Davis-Trapani v. Scarcella, No. CV000436800, 2003 WL 21805633, at *3 (Conn. Super. Ct. July 23, 2003), aff'd 83 Conn. App. 903 (per curiam), cert. denied, 270 Conn. 917 (2004). But see Gordon, 208 Conn. at 167 (Identifying three limited exceptions under which liability may attach even though the act or omission at issue was discretionary).
13 Gordon, 208 Conn. at 170 n.3. See Mulligan v. Rioux, 229 Conn. 716, 727-30 (1994).
14 Mitchell v. Forsyth, 472 U.S. 511, 524 (1985).
15 X-Men Sec. Inc. v. Pataki, 196 F.3d 56, 65-66 (2d of Narcotics, 456 F.2d 1339, 1342 (2d Cir. 1972).
16 Ehrlich v. Town of Glastonbury, 348 F.3d 48, 54-57 (2d Cir. 2003).
17 Saucier v. Katz, 533 U.S. 194, 201 (2001); Conn v. Gabbert, 526 U.S. 286, 290 (1999).
18 Harlow v. Fitzgerald, 457 U.S. 800, 814 (1982).
19 177 F.2d 579 (2d Cir. 1949).
20 Bivens v. Six Unknown Named Agents of the Fed. Bureau
21 Gregoire, 177 F.2d at 581.
22 472 U.S. 511, 528 (1985). See Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949).
23 Id. at 525-27.
24 Id. at 527.
25 515 U.S. 304 (1995).
26 Id. at 307.
27 Siegert v. Gilley, 500 U.S. 226, 232 (1991).
28 See Munafo v. Metro. Transp. Auth., 285 F.3d 201, 210-11 (2d Cir. 2002).
29 30 Conn. App. 693, 697-98 (1993).
30 Martinez, 263 Conn. at 77 n.5; Chadha, 77 Conn. App. at 110.
31 81 Conn. App. 382, 395-97, cert. granted, 268 Conn. 916 (2004). Cir. 1999).