August 13, 2009
By: David K. Jaffe
The common law principle of sovereign immunity, which holds that the state may not be sued without its consent, is well established in our jurisprudence. The underlying rationale of the doctrine of sovereign immunity has been phrased in theoretical terms. For example, in Horton v. Meskill, 172 Conn. 615 (1977), the Connecticut Supreme Court noted, "as Mr. Justice Holmes wrote: A sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends. The modern rationale for the doctrine, however, rests on the more practical ground that the subjection of the state and federal governments to private litigation might constitute a serious interference with the performance of their functions and with their control over their respective instrumentalities, funds and property. This rationale suggests that the doctrine protects the state from unconsented to litigation, as well as unconsented liability.
In Bergner v. State, 144 Conn. 282, the Court recognized the distinction between immunity from suit and immunity from liability, and held that a statutory waiver of sovereign immunity constituted a waiver of suit and provided a remedy to enforce such liability as the general law recognizes. The state's waver of its immunity from liability only arises after a prior determination that it has waived its immunity from suit, and that a waiver of immunity from suit does not necessarily imply a waiver of immunity from all aspects of liability. Id. at 286. The Bergner court concluded that a statute that explicitly waived immunity from suit should be construed as implicitly waiving immunity from liability, because, otherwise, the waver of suit would be meaningless. Id. at 287.
Thus, the state's sovereign immunity right not to be required to litigate at all, as opposed to its right not to be ultimately subjected to liability, is analogous to that facet of the criminal defendant's constitutional double jeopardy right not to be tried twice for the same offense Because that constitutional right includes the right not even to be tried for the same offense, the denial of a motion to dismiss criminal charges, filed on the basis of a colorable claim of double jeopardy, is an immediate appealable final judgment under the second prong of State v. Curcio, 191 Conn. 27, 31 (1983). Similarly, therefore, in a civil case the denial of a motion to dismiss, filed on the basis of a colorable claim of sovereign immunity, is also, under Curcio, regarded as an immediately appealable final judgment.
The immunity enjoyed by municipalities of the state, governmental immunity, differs from sovereign immunity in historical origin, scope and application. A suit against a municipality is not a suit against a sovereign. Towns have no sovereign immunity, and are capable of suing and being sued in any action. Municipalities do, in certain circumstances have a governmental immunity from liability. But that is entirely different from the state's sovereign immunity from suit.
A municipality itself was generally immune from liability for its tortious acts at common law. Governmental immunity, however, may be abrogated by statute. Under the principle of governmental immunity, a municipality, in certain circumstances, possesses immunity from liability, but not from suit. Rather, municipal governments have a limited immunity from liability. Accordingly, municipalities are capable of suing and being sued, similar to any natural person, corporation or other entity.
The state's immunity from suit implicates subject matter jurisdiction and, therefore, provides a basis for a court to grant a motion to dismiss. The doctrine of governmental immunity does not implicate subject matter jurisdiction and is not a basis for granting a motion to dismiss.
 See Lagassey v. State, 268 Conn. 723, 732 (2004).
 Horton v. Meskill, 172 Conn. 615, 623-24 (1977).
 See also Manifold v. Ragaglia, 94 Conn. App. 103, 122 (2006) (the aspect of sovereign immunity that protects the state from suit, however, is rendered meaningless if the issue is not fully resolved prior to trial).
 See Vejseli v. Pasha, 282 Conn. 561, 573 (2007).
 See Martinez v. Dept. of Public Safety, 263 Conn. 74, 87 (2003) (relying on distinction to explain why municipal police officer could file civil action to seek indemnification under CGS § 53-39a, while state trooper's recourse was to claims commissioner because of state's sovereign immunity from suit).
 Martel v. Metropolitan District Commission, 275 Conn. 38, 47-48 (2005).
 See Conn. Gen. Stat. § 52-557n.
 Vejseli v. Pasha, 282 Conn. 561, 573 (2007).
 Westport Taxi Service v. Westport Transit District, 235 Conn. 1, 26 (1995).
 See Gianetti v. Stamford, 25 Conn. App. 67, 79 (1991).
 See Lagassey v. State, 268 Conn. 723, 736 (2004).
 Vejseli v. Pasha, 282 Conn. 561, 572 (2007).