The Conscience of the State: History, Procedure & Precedents of the Office of the Claims Commissioner
| Publication year | 2021 |
| Pages | 409 |
72 CBJ 409. THE CONSCIENCE OF THE STATE: HISTORY, PROCEDURE & PRECEDENTS OF THE OFFICE OF THE CLAIMS COMMISSIONER
The Claims Commissioner has been described as "the conscience of the state."(fn1) Vested with enormous discretion, and freed from judicial review, the Claims Commissioner determines when the sovereign immunity of the State of Connecticut may be waived to permit suit or pay a claim. The standards, rules and precedents of the Claims Commissioner are not widely known. Decisions are unpublished and not readily available.
This article will endeavor to increase understanding of the office and its procedure. It starts with a discussion of the history of claims against the State, emphasizing the historical and continuing role of the General Assembly. Section II discusses the jurisdiction of the Claims Commissioner, especially the exceptions that routinely result in dismissal of claims for want of jurisdiction. Section III examines practice and procedure before the Office of the Claims Commissioner. Section IV reviews the standards applied and digests some of the available decisions. Section V discusses legislative review and the virtual absence of judicial review. Section VI is a brief guide to the prosecution of actions against the State once authorized. Section VII offers the author's recommendations for improving this system or adopting another. The article is not a comprehensive guide to sovereign immunity, its application and exceptions. It focuses on recurring issues encountered by claimants and their counsel when pursuing claims before the Claims Commissioner.
An appreciation of the history of claims against the State is essential to understanding the present Office of the Claims Commissioner. The doctrine of sovereign immunity generally protects the State of Connecticut from suits for money damages except when authorized by law. The Connecticut Supreme Court has refused to abrogate the doctrine, holding that whether the principles of sovereign immunity from suit and liability can best serve this and succeeding generations has become a matter for legislative, not judicial, determination.(fn2) The General Assembly has the authority to abrogate any governmental immunity by statute (fn3) but has not done so.
The legislature has waived sovereign immunity in specific instances to pay particular claims and authorize particular suits. The legislative task of reviewing claims has been passed from the Committee on Claims of the. General Assembly, to the Claims Commission, and then to the present Claims Commissioner.
Before 1959, claims were heard through private bills or special acts presented to the General Assembly. The joint Standing Committee on Claims would take sworn testimony from claimants and supporting witnesses and would hear from attorneys and legislators. Transcripts of the proceedings of this committee are available dating back to 1905. In the early days, the Attorney General, later replaced by his assistants, would state the position of the State orally before the committee. The nature of claims was remarkably similar to those presented today, except that there were more claims arising from state military operations. Some claims were presented, and payment recommended, on the basis that there was no legal claim for compensation but only a moral obligation. (fn4)
The adjudication of claims gradually became an increasing burden on the General Assembly. (fn5) A report of the Legisl
ative Council to the 1955 General Assembly recommended the creation of an administrative commission to hear and decide certain classes of claims. However, the Attorney General suggested that the General Assembly lacked constitutional authorization to delegate to another agency the function of deciding claims.(fn6) A constitutional amendment was thus prepared and submitted to the voters, who approved it. The state constitution was amended November 20, 1958 to provide that " [c]laims against the state shall be resolved in such manner as may be provided by law."(fn7)
With the amendment in place, the Legislative Council issued a further report in 1958. It reviewed the claims experience of the 1957 General Assembly, which was as follows:(fn8)
Contract........... 21 11 51%
Pensions........... 14 6 43%
Compensation....... 15 9 60%
Reimbursement and
Refunds............ 42 42 31%
Bonuses (military). 2 1 50%
Total..............146 60 41%
Contract...........16 12 75%
Property Rights....1 0 0%
Total..............39 25 64%
The Council then discussed its vision of a two-part system for administrative and judicial determination of claims. It intended a broad right to sue the State on claims exceeding one thousand dollars:
Although many states permit only limited judicial determination - usually of contract and tort cases only - the Council feels the greatest benefit would be derived from its extension to most normal state operation . . . This would bring about judicial pronouncement on all ordinary claims for $1,000.00 or more in which the claimant asserts a right under which he could sue a private person . . .(fn 9)
On the other hand, the Legislative Council envisioned the Claims Commission deciding claims for lesser sums, and claims for moral obligations, which are appeals to the conscience of the State rather than judicially enforceable claims. (fn10) The Legislative Council wrote that "since few of these claims assert what would ordinarily be a legal right, the machinery of neither the judicial nor the administrative process is equipped to handle them. Even with judicial determination authorized they continue to be questions susceptible only of legislative solution."(fn11)
The Council concluded that administrative adjudication combined with judicial consideration would function most effectively and most economically, with the least difficulty and greatest justice and satisfaction.(fn12) With the constitutional amendment, the General Assembly sought to adopt the type of procedure for adjudication of claims which had been rec
ommended by the Legislative Council as a result of its study.(fn13)
aims Commission, created in 1959, consisted of three members appointed by the governor with the advice and consent of the General Assembly.(fn14)Their terms were six years.(fn15) Unlike the present Claims Commissioner, the members of the Claims Commission were required only to be electors, not attorneys. (fn16) The Claims Commission was not bound by any law or rule of evidence, except as it provided by its rules.(fn17) It was authorized to pay claims which in equity and justice the State should pay, provided that the State has caused damage or injury or has received a benefit.(fn18)
The Claims Commission functioned for 16 years. In 1975, a battle over a nominee to fill a vacancy was followed by the abolition of the entire Claims Commission and its replacement with the present Office of the Claims Commissioner. The substantive standards were unchanged. All pending claims were transferred. The Claims Commissioner was required to be an attorney admitted to practice before the Connecticut courts fisions digested in Section W.B.or at least five years.(fn19) The executive secretary of the predecessor Claims Commission, John E. Fay, was nominated as the first Claims Commissioner. Because the Claims Commissioner is not bound by law or precedent, (fn20) he is free to depart from the precedents of his predecessors, or from his own prior decisions. The statutory
standard has been applied differently by the different Commissioners, which should be borne in mind when analyzing the decisions digested in Section W.B.
as Executive Secretary of the Commission
McLouglin............1983-86 Lawyer & Lobbyist Gov O'Neill
Practice
Mariani..............1991-93 Attorney in Private Gov. Weiker Practice, former Press Secretary to Gov. Meskill
Practice, former state Legislator
member of board of par- dons; attorney in private
practice
Commissioner Fay was not inclined to grant permission to sue. One of his rules expressly indicated that permission to sue is "reluctantly" granted(fn22) a standard not found in the statutes and not envisioned by the Legislative Council which developed the original framework for tile dual administrative and judicial determination of claims. During one three-year period, he only granted permission to sue in three claims.(fn23)
He was not as liberal as some of his successors in paying claims, either, but his standard was not as strict as the sole proximate cause rule employed by Commissioner Smith. (fn24) Commissioner Fay's published rules included his "definition of just claim" in section 4-141 of the General Statutes:
This statement is interpreted to mean that the general substantive provisions of law as e.g. in negligence cases are not abrogated. But it means further than in such instance where the usual provisions of substantive law are applicable, the Commissioner may depart from such substantive provisions to permit the claimant to recover a reasonable...
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