Attorney General: Honorable Emil H. Frankel, Department of Transportation, 1991-025 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

July 29, 1991

Honorable Emil H. Frankel
Commissioner
Department of Transportation
24 Wolcott Hill Road
Wethersfield, CT 06109

Dear Commissioner Frankel:

By letter dated July 19, 1991, you state that a company called Hartford Paving Inc. ("Hartford Paving" ) has been performing bridge painting work for the Department of Transportation ("DOT") pursuant to purchase orders issued to it by the DOT in accordance with Contract Award No. 890-A-13-1054-C. You further state that you have been informed that Hartford Paving's certificate of registration under the Home Improvement Act, Conn. Gen. Stat. 20-418 et seq., was revoked by the Department of Consumer Protection and that Hartford Paving was ordered to pay approximately $49,000 in restitution to its customers but that it has failed to do so. In view of the fact that the DOT is processing payments to Hartford Paving in excess of $49,000 for work it has done on various DOT bridge projects, you have asked our opinion as to whether the Department of Consumer Protection has a right to attach or garnish these funds. For the reasons that follow, it is our opinion that these funds are not subject to attachment or garnishment.

In general, the terms "attachment" and "garnishment" refer to prejudgment and post judgment remedies available to parties in court actions. "An attachment of property on mesne process is a mode of obtaining security for the satisfaction of any judgment which the plaintiff may finally recover..." Atlas Garage & custom Builders, Inc. v. Hurley, 167 Conn. 248, 251, 355 A.2d 286 (1980), quoting from Morgan v. New York National Bldg. & Loan Assn., 73 Conn. 151, 46 A. 877 (1900). Garnishment is a form of attachment looking to the impounding of funds due a defendant. "However, attachment and garnishment differ in character in t hat attachment is directed against property of the principal defendant which is in his possession or under his control, while the object of garnishment is to reach an indebtedness due to the principal defendant by a third person, or property in the possession or control of a third person which belongs to the principal defendant." 7 C.J.S. Attachment 2. p. 227.

"The remedy of attaching and securing a defendant's property to satisfy a judgment which the plaintiff may recover is unknown to the common law and is founded on and regulated by our statutory law." Essex Group, Inc. v. Ducci Electric Co., 181 Conn. 524, 525, 436 A.2d 16 (1980). The general statutory scheme governing attachment and garnishment is found in chapters 903a through 906 of the Connecticut General Statutes. A review of these statutes, however, fails to disclose any provision specifically subjecting the State to an action for attachment or garnishment under the circumstances outlined in your letter.1 This is important because Connecticut court decisions have held that the State, as a consequence of its sovereignty, is not subject to statutory obligations or liabilities absent an express waiver of sovereign immunity by the legislature. This principle has been applied in garnishment situations. Prudential Mortgage & Investment Co. v. New Britain, 1q23 Conn. 390, 394, 195 A.609 (1937). For example, in the early case of Stillman v. Isham, 11 Conn. 124 (1835), our Supreme Court ruled that funds held by a state's attorney in his public capacity could not be garnished.

The pervading principle, in all these cases, is, that public officers, who are bound to transact the public business by certain rules, and in certain forms, shall not be exposed to the expense, the inconvenience and hazard incident tot has process.

11 Conn. at 127. See also, Morgan v. Schmid , 27 Conn. Sup. 481m 244 A.2d 824 (1965).

In Millstone Point Co. v. Rutka, 27 Conn. Sup. 482, 244 A.2d 829 (1966), the court made the observation that:

Stephenson, Connecticut Civil Procedure 36(d), (e) and (f), pages 78 and 79, states that the rule in the United States is that the state cannot be made a garnishee. While no statute exists in Connecticut, it would be safe to assume that the rule obtains herein the absence of statutes authorizing procedures to allow the state to be garnishee.

The question of whether the Highway Commissioner (now the Commissioner of Transportation) was subject to the process of garnishment was answered in the negative in an Attorney General's opinion rendered in 1950. See, 26 Conn. Op. Atty. Gen. 268 (August 1, 1950).

The fact that the entity seeking to attach or garnish funds in the possession of the DOT may be another State agency does not alter the basic legal analysis and result. The other State agency, in this case the Department of Consumer Protection, would have to rely on a statutory grant of authority for obtaining an attachment or garnishment. As noted above the general statutory provisions contained in chapter 903a through 906 provide no such authority in this regard. However, other remedies exist for the Attorney General, representing the Department of Consumer Protection, to recover monies expended from the Home Improvement Guaranty Fund. See Conn. Gen. Stat. 20-432(o). (Attorney General may take action to recover funds if the Commissioner determines that the company in question has assets).

Very truly yours,

RICHARD BLUMENTHAL
ATTORNEY GENERAL

RB/mfk


1 The legislature has provided that the State, as an employer, is subject to wage executions. See Conn. Gen. Stat. 52-361a(g).


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