The Charla Nash case brought national attention to Connecticut’s bizarre process for suing the state. Nash was the victim of a brutal attack by a friend’s chimpanzee. She suffered horrific injuries and underwent a face transplant along with multiple surgeries that cost millions of dollars. Nash sought to sue the state Department of Energy and Environmental Protection on the theory that state officials knew that the chimpanzee was dangerous and should not have allowed Nash’s friend, Sandra Herold, to keep it in her Stamford home.

It appears rather dubious that the state was, in fact, responsible for Nash’s injuries. But that question was never answered by a court of law.

The process for suing the state for money damages in Connecticut is unique and that process was front and center in the Nash case. At common law, the state cannot be sued by one of its citizens without its consent. This principle of “sovereign immunity” routinely has been applied by Connecticut courts to shield the state from liability. Bill Barrante, the late long-time managing editor of the “Connecticut Bar Journal,” authored a compelling article in 2005 entitled “Common-Law Sovereign Immunity: Why Connecticut Never Really Had It,” in which he explained why this application of sovereign immunity might have been the result of an analytical misstep. However, “sovereign immunity” is the law of the land and continues to be applied to bar lawsuits filed against the state. For claims involving money damages, litigants must first obtain a waiver of sovereign immunity from the claims commissioner or the legislature.

The Connecticut Constitution requires that citizens have an ability to make claims against the state. In 1958, the state Constitution was amended to provide that “claims against the state shall be resolved in such manner as may be provided by law.” The General Assembly passed a law creating the Claims Commission in 1959, which was set up to make recommendations to the General Assembly as to whether to pay or reject claims. In 1975, the law was amended to create the present day claims commissioner.

A party seeking to sue the State has a one year jurisdictional statute of limitations within which to file a claim with the Commissioner seeking permission to sue. That claim is decided by the claims commissioner who can: (1) deny or dismiss the claim; (2) grant permission to sue the state; (3) grant a claimant an award of up to $20,000; or (4) recommend that the General Assembly approve an award of a higher amount. An individual may seek review of a decision of the claims commissioner by appealing to the General Assembly (not the courts).

The Nash case puts this process in context. Nash filed a claim with the claims commissioner. The claims commissioner dismissed it. As required by the process, Nash then asked the legislature to pass a special act that would permit her to sue the state. The bill was defeated in the legislature’s Judiciary Committee by a vote of 35-3. But what if the bill had succeeded? Then Nash would have had the right to sue and a superior court would determine if the state were liable, correct? Probably, but not necessarily. Article First, Section One of the Connecticut Constitution bars the General Assembly from granting exclusive public emoluments to individuals. This provision has been used by our courts to strike down legislative “right to sue” grants that provide individuals with relief from procedural violations, such as an untimely filing with the claims commissioner.

But, arguably, a legislative enactment that exclusively gave Nash the right to sue might also be in tension with the state Constitution’s public emolument clause. Our courts have explained that legislative actions that lack any public purpose and are for the exclusive benefit of one person are generally incompatible with the public emoluments clause. This public purpose requirement can be satisfied if the legislative action is taken to remedy a harm caused by the state, even if it benefits an individual. Under this principle, if a plaintiff can prevail on the merits of his claim that he has been harmed by the state, then there is any argument that a legislative authorization of suit could satisfy the public purpose requirement. However, this also seems counterintuitive since, after a suit has been authorized by the legislature, it still should be up to the trial court to determine whether there is, in fact, liability.

Connecticut appears to be the only state in the country with this confusing system. Given that the state Constitution’s open courts provision guarantees a remedy by due course of law for every injured person, Connecticut’s process for suing the state should be reevaluated to protect that right through judicial redress. There are several options.

The Connecticut Supreme Court can reconsider its sovereign immunity jurisprudence to ensure that injured parties have at least the opportunity to make their case in court. The legislature could provide judicial review of decisions by the claims commissioner. We think that the best solution is for the legislature to simplify the process by adopting a State Tort Claims Act. Under such legislation, suits against the state could proceed, without the unfairness of being barred by sovereign immunity, subject to certain legislatively created limitations, such as a cap on damages.

In the Nash scenario, if Connecticut had a State Tort Claims Act, rather than expending resources defending against Nash’s claim before the claims commissioner and then defending against the proposed legislation before the legislature’s Judiciary Committee, the Attorney General’s Office would have defended the suit on the merits before the superior court. Given the facts of the case, it is unlikely that Nash could establish liability against the state for her injuries, whether for lack of duty or proximate cause. But the issue would have been properly adjudicated by a court of law, rather than being subject to a political process that may itself violate the state Constitution. •