Trinity Christian Sch. v. Comm'n on Human Rights & Opportunities

Trinity Christian School v. Commission on Human Rights and Opportunities et al

No. HHBCV166032047S

Superior Court of Connecticut, Judicial District of New Britain, New Britain

August 22, 2016

UNPUBLISHED OPINION

MEMORANDUM OF DECISION ON MOTION TO DISMISS

Carl J. Schuman, Judge.

Plaintiff Trinity Christian School has filed this appeal from the denial by a referee for the defendant commission on human rights and opportunities (commission) of the plaintiff's motion to dismiss a claim of employment discrimination filed by defendant Andrea Sokolowski. The plaintiff asserts primarily that Sokolowski's duties were ministerial in nature (in the religious sense), that the plaintiff has immunity from suit under General Statutes § 52-571b which generally protects religious freedom, and that the plaintiff's statutory immunity gives it a right to take an immediate appeal. The commission moves to dismiss on the ground that the appeal is interlocutory. The court agrees and grants the commission's motion to dismiss.

I

This case has a most unfortunate procedural history. Sokolowski first filed her complaint of pregnancy discrimination with the commission in April 2011, almost five and one-half years ago. In October 2012, the plaintiff filed a motion to dismiss on the ground that the common law ministerial exception which protects religious institutions from suit by its ministers and clergy, gave the plaintiff immunity from the commission action. The referee denied the motion and the plaintiff appealed. On February 24, 2014, the court Prescott, J., granted the commission's motion to dismiss the appeal on the ground that, under Hasanna-Tabor Evangelical Lutheran Church & School v. Equal Employment Opportunity Commission, 565 U.S. 171, 132 S.Ct. 694, 181 L.Ed.2d 650 (2012) (Hasanna-Tabor), the ministerial exception, as a matter of federal first amendment law, was an affirmative defense rather than a jurisdictional defense and therefore the plaintiff could not take an immediate appeal. See Trinity Christian School v. Commission on Human Rights and Opportunities, Superior Court, judicial district of New Britain, Docket No. HHB CV13 6021547S (February 24, 2014).

Back in the commission, but over a year later, the plaintiff filed a second motion to dismiss, this time claiming that it was immune pursuant to General Statutes § 52-571b(d).^[1] The parties completed the filing of briefs on June 4, 2015. The referee nonetheless took until December 10, 2015 to write a three page decision, the essence of which was as follows: " [T]he dispute remains the same as in the October 2012 motion to dismiss, i.e. the applicability of the 'ministerial exception.' Therefore the previous ruling on that question should be honored."

The plaintiff has again appealed and the commission has again moved to dismiss the appeal on the ground that it is interlocutory.

II

In Rweyemamu v. Commission on Human Rights &amp Opportunities, 98 Conn.App. 646, 911 A.2d 319 (2006) cert. denied, 281 Conn. 911, 916 A.2d 51, cert. denied, 552 U.S. 886, 128 S.Ct. 206, 169 L.Ed.2d 144 (2007), the Appellate Court first held that " Connecticut administrative law . . . must recognize the ministerial exception in the enforcement of our employment discrimination statutes." Id., 654. Then, in Dayner v. Archdiocese of Hartford, 301 Conn. 759, 23 A.3d 1192 (2011), our Supreme Court stated that " the ministerial exception . . . is constitutionally required by various doctrinal underpinnings of the [f]irst [a]mendment . . . When the ministerial exception applies, it provides the defendant with immunity from suit and deprives the court of subject matter jurisdiction." (Citations omitted; internal quotation marks omitted.) Id., 769.

In Dayner, our Supreme Court had to decide whether a trial court's denial of a motion to dismiss premised on the ministerial exception was an immediately appealable judgment under General Statutes § 52-263, which governs appeals from the Superior Court. Id., 768. The Court applied the second prong of the test from State v. Curcio, 191 Conn. 27, 463 A.2d 566 (1983), under which " a colorable claim to a right to be free from an action is protected from the immediate and irrevocable loss that would be occasioned by having to defend an action through the availability of an immediate interlocutory appeal from the denial of a motion to dismiss." Dayner v. Archdiocese of Hartford, supra, 301 Conn. 771.^[2]

Although appeals to the Superior Court under the Uniform Administrative Procedures Act (UAPA), such as the present one, derive their authority from General Statutes § 4-183 rather than § 52-263, there are no reasons not to apply the same principles. Indeed, § 4-183(a) similarly provides for appeals from a " final decision" of an agency^[3] and § 4-183(b) contains exceptions similar to those in the second prong of Curcio .^[4]

Therefore, the court must determine whether the plaintiff relies on " a colorable claim to a right to be free from an action . . ." Dayner v. Archdiocese of Hartford, supra, 301 Conn. 771. Such a claim " is protected from the immediate and irrevocable loss that would be occasioned by having to defend an action through the availability of an immediate interlocutory appeal from the denial of a motion to dismiss." Id. A claim is " colorable" when the appealing party can demonstrate that it might prevail. See State v. Crawford, 257 Conn. 769, 776, 778 A.2d 947 (2001), cert. denied, 534 U.S. 1138, 122 S.Ct. 1086, 151 L.Ed.2d 985 (2002). See also id., 776-80 (no colorable double jeopardy claim or basis for interlocutory appeal when defendant claimed that State could not charge him with manslaughter in the first degree after he had pleaded guilty to assault in the first degree, as the core of the defendant's claim was that he should not be punished twice for the same offense, not that he should be free from a subsequent prosecution).

The Dayner court, relying primarily on a decision of the District of Columbia Court of Appeals, held that the ministerial exception satisfied this test because " it provides the defendant with immunity from suit and deprives the court of subject matter jurisdiction." Dayner v. Archdiocese of Hartford, supra, 301 Conn. 771-72 (citing Heard v. Johnson, 810 A.2d 871, 877 (D.C. 2002)). However, five months after our Supreme Court decided Dayner, the United States Supreme Court handed down its ruling in Hasanna-Tabor . The Court concluded that the ministerial exception " operates as an affirmative defense to an otherwise cognizable claim, not a jurisdictional bar. That is because the issue presented by the exception is 'whether the allegations the plaintiff makes entitle him to relief, ' not whether the court has 'power to hear [the] case.'" Hasanna-Tabor, supra, 132 S.Ct. 709 n.4.

Our courts are bound by Hasanna-Tabor . The ministerial exception stems from the first amendment and is a matter of federal constitutional law. See Dayner v. Archdiocese of Hartford, supra, 301 Conn. 769; Rweyemamu v. Commission on Human Rights & Opportunities, 98 Conn.App. 652-53. The authority of the United States Supreme Court on issues of federal constitutional law is " full and complete." State v. Dukes, 209 Conn. 98, 113, 547 A.2d 10 (1988).^[5] Accordingly, the plaintiff can no longer make a colorable claim that the ministerial exception in itself affords it immunity from trial.

Instead, the plaintiff now argues that it is immune under § 52-571b(d). Section 52-571b(d) is part of a statute entitled " Action or defense authorized when state or political subdivision burdens a person's exercise of religion." Sections (a) through (d) of the statute provide as follows: " (a) The state or any political subdivision of the state shall not burden a person's exercise of religion under section 3 of article first of the Constitution of the state even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section.

" (b) The state or any political subdivision of the state may burden a person's exercise of religion only if it demonstrates that application of the burden to the person (1) is in furtherance of a compelling governmental interest, and (2) is the least restrictive means of furthering that compelling governmental interest.

" (c) A person whose exercise of religion has been burdened in violation of the provisions of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against the state or any political subdivision of the state.

" (d) Nothing in this section shall be construed to authorize the state or any political subdivision of the state to burden any religious belief." ^[6]

The court must analyze § 52-571b under the backdrop of Employment Division, Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990). The Rweyemamu Court summarized Smith follows: " Smith held that the free exercise rights of a member of the Native American Church did not prohibit the government from enforcing the generally applicable drug laws that criminalize the use of peyote, even if used in a of [sic] religious ceremony. Id., at 885, 110 S.Ct. 1595. In so holding, the court concluded 'that the sounder approach, and the approach in accord with the vast majority of our precedents is to hold the [compelling state interest] test inapplicable to such challenges. The government's ability to enforce generally applicable prohibitions of socially harmful conduct, like its ability to carry out other aspects of public policy, cannot depend on measuring the effects of a governmental action on a religious objector's spiritual development . . . To make an individual's obligation to obey such a law contingent upon the...