Attorney General's Opinion
Attorney General, Richard Blumenthal
February 2, 2007
Honorable Dennis Kerrigan, Chairman
State Marshall Commission
765 Asylum Avenue
Hartford, CT 06105
Dear Mr. Kerrigan:
In your letter dated August 15, 2006 you have asked this office to render a formal opinion concerning the service of capias mittimus by state marshals. Your letter raises the following questions:
1. Is a capias mittimus a criminal or civil process?
2. Does the State Marshal Commission have the authority to establish a procedure by which all state marshals are required to serve capias mittimus similar to the process set by the Commission regarding the service of domestic violence restraining orders?
3. If the answer to the previous question is yes, what principles should the Commission use in establishing a procedure to enforce such obligation?
4. Would a rule mandating that individual state marshals serve capias mittimus violate the Americans with Disabilities Act?
5. Is a state marshal personally liable for injuries that an arrestee may suffer while in custody of a marshal?
6. Can a state marshal claim sovereign immunity as a defense to any claim by an arrestee for injuries suffered while in the custody of the marshal?
As discussed in this opinion, a capias mittimus in this context is a civil process compelling the court attendance of parents who have failed to appear for child support proceedings. State marshals are authorized to serve capias, and the use of capias is a critical component of the state's child support enforcement program. Although numerous measures have already been taken by the General Assembly, the Judicial Department and the State Marshal Commission to assist marshals in the service of capias, additional action is required to ensure that state marshals serve capias, as they do other forms of civil process.
By law, each state marshal "shall receive each process directed to such marshal when tendered, execute it promptly and make true return thereof." Conn. Gen. Stat. §6-32. Additionally, the Commission has the authority to adopt regulations establishing "professional standards" for state marshals, including standards that govern their responsibility to serve civil process, and to discipline or terminate those marshals who do not comply with those standards. Conn. Gen. Stat. §6-38b(f) and (j). Because capias mittimuses are civil process, these statutes appear to give the Commission the authority to require state marshals to serve all capias mittimus directed to them.
Despite this apparent legislative authority, the 2001 enactment of Conn. Gen. Stat. §6-38b(g) makes the Commission's authority to require marshals to serve capias mittimus ambiguous. In that statute the legislature gave the Commission the specific authority to require state marshals to serve restraining orders - - another type of civil process. The absence of similar specific statutory authorization for the Commission to require state marshals to serve capias calls into question the Commission's authority to do so. Legislative clarification on this critical issue is, therefore, essential.
Additionally, current law appears to imply that state marshals may not serve process outside the county in which they are appointed, but legislative clarification of this issue is also appropriate.
The Americans with Disabilities Act would not prevent the Commission from adopting a rule requiring service of capias mittimus by state marshals. Instead, to the extent the Americans with Disabilities Act applies to state marshals in this context, the provisions of the ADA must be applied on an individual, case-by-case basis.
Finally, state marshals are independent contractors and may not raise the defense of sovereign immunity to claims of damage or personal injury. Nevertheless, state marshals are statutorily immune from suit for damages or injuries caused "in the performance of execution or service of process functions," if their actions are not wanton, reckless or malicious. State marshals are also required to carry personal liability insurance.
Is a Capias Mittimus a Civil or a Criminal Process?
The question of whether a capias mittimus is civil or criminal process was the subject of a prior Opinion. That Opinion, rendered pursuant to a request from the Commissioner of Social Services in 2000, contains an extensive, historically based and clear analysis of the several factors that distinguish civil and criminal arrest process. It concludes that,
Connecticut law clearly distinguishes between civil arrests and criminal arrests. The distinguishing characteristic of a criminal arrest is that it results in a person being charged with an offense for which a sentence of incarceration for a definite term and/or a fine may follow. A civil arrest merely brings a person to court to testify or to respond to a civil claim. It seems clear to us, under this analysis, that a capias is civil process. (Emphasis added).
Opinion of the Attorney General, No. 2000-010 (March 7, 2000).
There have been no developments since the referenced prior Opinion that would change its conclusion.
Does the State Marshal Commission Have the Authority to Establish Procedures Mandating that All State Marshals Accept and Serve Capias Mittimus?
We conclude that the Commission's authority to establish a procedure by which all marshals are required to serve capias mittimus is uncertain and requires legislative clarification.
Connecticut General Statutes § 6-32 sets forth the duties of a state marshal. It provides, in its entirety, as follows:
Each state marshal shall receive each process directed to such marshal when tendered, execute it promptly and make true return thereof; and shall, without any fee, give receipts when demanded for all civil process delivered to such marshal to be served, specifying the names of the parties, the date of the writ, the time of delivery and the sum or thing in demand. If any state marshal does not duly and promptly execute and return any such process or makes a false or illegal return thereof, such marshal shall be liable to pay double the amount of all damages to the party aggrieved. (Emphasis added).
Connecticut General Statutes § 6-38b establishes the State Marshal Commission. Subsection (f) of that section provides, in its entirety, as follows:
The commission, in consultation with the State Marshals Advisory Board, shall adopt regulations in accordance with the provisions of chapter 54 to establish professional standards, including training requirements and minimum fees for execution and service of process. (Emphasis added).
The plain language of § 6-32 appears to prohibit a state marshal from picking and choosing the type of work he will perform. By use of the mandatory “shall,” it appears that the General Assembly did not intend to give a state marshal the choice of accepting or rejecting civil process for service depending on the type of civil process to be served. While it is true that state marshals are independent contractors, a court has stated that it is a privilege (and not a right) to be a state marshal. He can either comply with the law or resign. Page v. State of Connecticut, 2006 Conn. Super. LEXIS 941(2006).1
The State Marshal Commission, which came into being in 2000 as a part of legislation abolishing the County Sheriff system, is the regulatory agency charged with responsibility for the appointment2, termination3 and discipline4 of state marshals. The statutory grant of authority contained in § 6-38b(f) to “adopt regulations…to establish professional standards…” could be viewed as authority to ensure that state marshals provide the full panoply of service of process functions normally expected from such officers.5 That a state marshal might use his commission to “specialize” in a certain type of service of process to the exclusion of all other types of service appears to violate the spirit, if not the clear language of § 6-32. By use of its regulatory authority to “establish professional standards,” the Commission could be seen as having to have the authority to set standards to ensure that all process, and not only those types of process that individual state marshals find most desirable, is served within each county.
Although § 6-32 and 6-38b together may be read to give the Commission the authority to require state marshals to serve capias warrants, the legislative enactment of Conn. Gen. Stat. § 6-38b(g) makes the issue unclear. Section 6-38b(g) contains a specific statutory requirement that the Commission ensure the equitable assignment of restraining orders for service and specifically authorizes the Commission to ensure that restraining orders are served by state marshals, under threat of removal from office. Restraining orders, like capias mittimuses, are civil "process" under Section 6-32.
Subsection (g) was not in the original legislative enactment by which the County Sheriff system was abolished and the position of state marshal created for the service of civil process. Rather, it was added to the statute in 2001 by Public Act 01-9, §8 (June Special Session). The legislative history of that Public Act discloses that the proposal was first introduced in the 2001 June Special Session by an emergency certification on June 29, 2001, approved by both houses of the General Assembly on the same date and signed by the Governor on July 2, 2001. There were no committee hearings or committee votes on the proposal and there was no reference to the proposal during the debate on the floor of the House. Moreover, there is no record of any debate on the bill in the Senate.
Because there is no record to establish the legislative intent in enacting Section 6-38b(g), the question raised by its enactment is whether, despite Conn. Gen. Stat. §6-32 and §6-38b, a similar, specific statute is necessary to enable the Commission to order state marshals to serve capias mittimus, under threat of discipline or removal. Given the uncertainty of the legislature's intent in enacting subsection (g), legislative clarification is required concerning the Commission's authority to compel state marshals to serve capias warrants.
What Principles Should Guide the Commission in Establishing Procedures Mandating Service of Capias Mittimus?
Should the legislature clarify the Commission's authority to require the service of capias mittimus, the Commission, in consultation with the State Marshals Advisory Board, must promulgate regulations pursuant to, and in accordance with, the provisions of Chapter 54 of the General Statutes. Those regulations may follow the methodology adopted by the Commission in response to its statutory responsibility to ensure that restraining orders are served. However, beyond stating that the process should ensure that capias mittimus warrants should be served expeditiously, as information relative to the whereabouts of the individual who failed to appear in court as ordered becomes stale very quickly, the Commission should strive to also ensure that the distribution among the several marshals in each county is equitable.
Would a Rule Mandating that All Marshals Accept and Serve Capias Mittimus be Impacted by the Americans with Disabilities Act?
The authority of the Commission to mandate that all marshals accept and serve capias mittimus is not likely to be in any way impacted by the Americans with Disabilities Act of 1990 (42 U.S.C. 12101, et. seq.). It is not clear whether the ADA applies to state marshals in this context; however, to the extent it does, the provisions of the ADA must be applied on an individual case-by-case basis.
The ADA is divided into three distinct sections. Title I of the ADA prohibits discriminatory employment practices; Title II prohibits a public entity, i.e., any governmental body, from discrimination in its provision of public services, programs and activities on account of a disability; and Title III prohibits discrimination in public accommodations operated by private entities on account of a disability.
It seems clear that neither Title I nor Title III apply to the appointment of state marshals. Title I of the ADA does not apply because a state marshal is not a state employee as defined by Title I. State marshals are, by statutory definition, “independent contractors” who are not “employees” for purposes of the Act. See, Lerohl v. Friends of Minn. Sinfonia, 322 F.3d 486 (8th Cir. 2003);6 Conn. Gen. Stat. § 6-38a(a). Title III of the ADA, which prohibits discrimination in places of employment and commercial facilities on account of disability, does not apply because the obligations of Title III only extend to private entities. Because the Commission is not a private entity or commercial facility, it is not subject to the provisions of Title III.
However, the applicability of Title II of the ADA is somewhat less clear. Title II prohibits excluding a qualified individual with a disability from benefits of services, programs or activities provided by public entities such as public assistance benefits, public transportation, housing, government sponsored medical or mental health services, or the like, by reason of a disability. Although appointment of a state marshal does not appear to be such a "service, program, or activity," it is not entirely clear whether the licensing and certification provisions in Title II would be applicable to the Commission's appointment of state marshals. Section II-3.7200 of the Title II Technical Assistance manual provides, in relevant part, as follows:
A public entity may not discriminate on the basis of disability in its licensing, certification, and regulatory activities. A person is a "qualified individual with a disability" with respect to licensing or certification, if he or she can meet the essential eligibility requirements for receiving the license or certification. The phrase "essential eligibility requirements" is particularly important in the context of State licensing requirements. While many programs and activities of public entities do not have significant qualification requirements, licensing programs often do require applicants to demonstrate specific skills, knowledge and abilities. Public entities may not discriminate against qualified individuals with disabilities who apply for licenses, but may consider factors related to the disability in determining whether the individual is "qualified."
Arguably, the appointment of a state marshal is not a licensing, certification, or regulatory activity as the terms are used in Title II. Further, a marshal who is unable to serve capias mittimus may not meet the "essential eligibility requirements" for such an appointment and therefore may not be a "qualified individual with a disability". In the event a state marshal (or an applicant for appointment to a state marshal position) requests to be excused from the requirement of serving capias mittimus, the Commission should evaluate such request on a case-by-case basis and is encouraged to seek further guidance and advice from this office as necessary.
Is a State Marshal Personally Liable for Injuries an Arrestee May Suffer While in Custody of a Marshal and May He Assert a Defense of Sovereign Immunity?
Your letter specifically asks whether a state marshal is personally liable for damages that an arrestee may suffer in the process of serving a capias mittimus, and whether a state marshal may claim the state's sovereign immunity in such circumstances. The underlying issue is in reality whether a state marshal is generally liable for damages that may arise during the performance of his duties, which include the service of capias mittimus warrants, or whether he is included within the state's sovereign immunity protection. These questions require a two-facet analysis.
The analysis begins with Connecticut General Statutes § 6-30a, which provides, in pertinent part, as follows:
On and after December 1, 2000, each state marshal shall be required to carry personal liability insurance for damages caused by reason of such marshal's tortious acts in not less than the following amounts: For damages caused to any one person or to the property of any one person, one hundred thousand dollars and for damages caused to more than one person or to the property of more than one person, three hundred thousand dollars.
This provision was first enacted in 1976 as to the former state sheriffs, and was amended in 2000 as part of legislation which replaced the County Sheriff system. The only change made in the 2000 amendment was to replace references to sheriffs and deputy sheriffs with references to state marshals, as necessary. No substantive changes were made in the text of the statute.
Connecticut General Statutes § 6-30a, when first enacted and to the present, recognizes the possibility that a state marshal may cause damage in the performance of his/her service of process duties and seeks to ensure that insurance coverage is available to protect any party injured by virtue of the marshal’s tortious conduct. Indeed, in Miller v. Egan, 265 Conn. 301, 329-330 (2003), a case in which the Supreme Court was required to consider the purpose behind the General Assembly’s original enactment of §6-30a in 1976, the Court concluded that sheriffs were personally liable for damages caused by them in the performance of their duties:
We fail to see how a requirement that sheriffs and deputy sheriffs purchase personal liability insurance necessarily implies that the legislature intended to waive the state's sovereign immunity, either from suit or liability, under § 6-30a. In fact, the opposite inference makes more sense, namely, that the legislature intended the individual sheriffs and deputy sheriffs, rather than the state, to bear liability for the conduct covered by the statute. This conclusion is bolstered by the statute's definition of "tortious acts" as "negligent acts, errors or omissions for which such sheriff or deputy sheriff may become legally obligated . . . ." (Emphasis added.) General Statutes (Rev. to 1999) § 6-30a.
The legislative history of the statute could not be more clear on this issue. During the floor discussion of Public Acts 1976, No. 76- 15, which eventually became § 6-30a, Representative Richard D. Tulisano, a member of the judiciary committee, which sponsored the legislation, explained the purpose of the act: "We want to make sure that the public is protected from any acts which the sheriff may incur in the event that he does not have personal assets of his own to cover either misservice of process, assault or battery or any other [of] those items listed in the statute." 19 H.R. Proc., Pt. 2, 1976 Sess., p. 494. If the legislature had intended to waive the state's sovereign immunity by enacting Public Act 76-15, it is difficult to see why the personal assets of the individual sheriffs or deputy sheriffs, or, more particularly, the possible lack thereof, would be a matter of concern. Even more persuasive is the subsequent exchange that took place between Representative Tulisano and Representative Gerald F. Stevens. Specifically, Representative Stevens asked whether it was "the intention of this legislation that no state funds be expended for the purchase of such insurance or for reimbursement of sheriffs." Id., p. 495. Representative Tulisano replied: "It is absolutely the intention of this bill to have it be a personal liability of the sheriff and not the state." (Emphasis added.) Id. It would be unreasonable, both in light of this clear evidence to the contrary and our duty to construe statutes strictly in order to effect the least change to sovereign immunity, to interpret the language and history of § 6-30a necessarily to imply a legislative intent to waive sovereign immunity. Therefore, we conclude, based on the statutory language and the legislative history, that the legislature did not intend § 6-30a to constitute such a waiver. (Emphasis in bold added, italics in original).
Given that § 6-30a was re-enacted by the General Assembly in 2000 with the only changes as stated above, it is clear that the General Assembly intended that state marshals be liable for damages caused by their tortious conduct and instituted an insurance requirement for the protection of the public. Grodis v. Burns, 190 Conn. 39, 47 (1983) (legislature, in re-enacting statute, is presumed to have ratified prior judicial decision); Davis v. Forman School, 54 Conn. App. 841, 846 (1999).
Moreover, Connecticut General Statutes §6-39 provides that
Each state marshal, before entering upon the duties of a state marshal, shall give to the State Marshal Commission a bond in the sum of ten thousand dollars conditioned that such state marshal will faithfully discharge the duties of state marshal and answer all damages which any person sustains by reason of such state marshal's unfaithfulness or neglect. (Emphasis added).
This section reinforces that state marshals are liable for damages arising from the performance of their duties. The requirement that they each post a bond before entering upon the duties of a state marshal is independent of the insurance requirement.
However, the General Assembly did provide state marshals with limited statutory immunity from liability for certain tortious acts in the performance of execution or service of process functions. Connecticut General Statutes § 6-38a (b) provides as follows:
(b) Any state marshal, shall, in the performance of execution or service of process functions, have the right of entry on private property and no such person shall be personally liable for damage or injury, not wanton, reckless or malicious, caused by the discharge of such functions.
Accordingly, in the performance of his duties, a state marshal is not liable for damage or injury, even if it occurs on private property, unless it is caused by behavior that is wanton, reckless or malicious. See, Opinion of the Attorney General, No. 2004-005 (May 10, 2004).
We therefore conclude that, subject to the statutory immunity provisions contained in § 6-38a (b), state marshals may be liable for damages arising from the performance of their duties, including injuries suffered by an arrestee. As this office stated in Opinion of the Attorney General, No. 2004-005 (May 10, 2004):
…state marshals serving capias warrants are independent contractors who do not qualify for the statutory indemnification afforded to state officers and employees. Instead, state marshals are required by statute to carry their own personal liability insurance. Similarly, state marshals under contract with the state to provide training services are independent contractors required to obtain their own personal liability insurance to protect themselves and the state from liability in connection with their training activities.
Nor may state marshals claim the state's sovereign immunity as a defense in such actions.
The doctrine of sovereign immunity generally provides that the state is immune from suit unless it consents to be sued. White v. Burns, 213 Conn. 307, 312, 567 A.2d 1195 (1990). Its protection extends to negligence actions against individual state officials and employees acting within the scope of their authority. Horton v. Meskill, 172 Conn. 615, 623, 376 A.2d 359 (1977). Connecticut General Statutes § 4-165 provides that “No state officer or employees shall be personally liable for damage or injury, not wanton, reckless or malicious, caused in the discharge of his or her duties or within the scope of his or her employment,” and Connecticut General Statutes § 5-141d provides that "any state officer or employee" sued for damages accruing while in the performance of their duties will be indemnified by the state for any such award arising from conduct that is not wanton, reckless or malicious conduct.
State marshals are not state officers or state employees within the meaning of Conn. Gen. Stat. § 4-165 and § 5-141d. This conclusion is based on the language of Connecticut General Statutes §§ 6-38a (a) and 6-38b(i). The former describes a marshal as “…an independent contractor compensated on a fee for service basis…” while the latter provides, in pertinent part, that “…no person may be a state marshal and a state employee at the same time.” We have previously found that, taken together, the provisions of the aforementioned sections preclude a state marshal from qualifying as a state employee for purposes of immunity from suit or indemnification from damages. Opinion of the Attorney General, No. 2001-28 (December 20, 2001) (The status of state employee and of independent contractor are mutually exclusive). Additionally, the Connecticut Supreme Court has specifically stated that the state has not waived its sovereign immunity and will not indemnify state marshals in suits that may be brought against state marshals. Miller v. Egan, 265 Conn. 301, 329-330 (2003).
Since a state marshal is not a state employee and, as an independent contractor, is clearly not a governmental agency, the doctrine of sovereign immunity is not available as a defense to an action for tortuous conduct against a state marshal.
Thank you for your letter. We hope this has been helpful.
Very truly yours,
Robert A. Nagy
Assistant Attorney General
1 It appears that, subject to certain exceptions set forth in Conn. Gen. Stat. §52-56, state marshals may only serve process in the county in which they are appointed. This is because, prior to the abolition of the County Sheriff system, the High Sheriff of each county had the authority to serve all legal process directed to him in his county. Deputy Sheriffs had the same power to serve legal process as the High Sheriff. While Public Act 00-99 made many significant changes, it did not change the number of process servers that could be appointed in each county and the statutes governing service of process were left largely intact. Section 6-38a(a) provides that a state marshal “… shall have authority to provide legal execution and service of process in the counties in this state pursuant to section 6-38…,” and § 6-38b(h) requires that an applicant for appointment to the position of state marshal must be an elector in the county in which a vacancy is to be filled. When read with the provisions of § 52-56, which authorizes a state marshal to leave his “precincts” (county) in limited sets of circumstances, these statutes appear to indicate a legislative intent to limit state marshals to service of process in the county in which they are appointed. However, since there is no explicit prohibition in the statutes against marshals serving process in counties other than the county in which they are appointed, legislative clarification is appropriate.
2 See, Connecticut General Statutes §§ 6-38 and 6-38b (h).
3 See, Connecticut General Statutes § 6-38b (j).
4 See, Connecticut General Statutes § 6-38b (f).
5 Connecticut General Statutes § 6-38 currently authorizes the appointment of a maximum of 318 state marshals state-wide. Statistics compiled by the Judicial Branch show that, as of 12/31/05, there were 3,200 outstanding capias mittimus warrants, all issued by Family Support Magistrates; that during calendar 2005, 25 state marshals served about 500 warrants of which nearly 50% were served by only 4 marshals; that only about 20% of all ordered capias mittimus warrants are executed; that of the approximately 195 capias mittimus warrants ordered each month by Family Support Magistrates, 66 are vacated and only 39 served, adding approximately 90 orders to the backlog of unserved capias mittimus warrants each month.
6 See, Johnson v. City of Saline, 151 F.3d 564 (6th Cir. 1998) which held that the test enunciated by the Supreme Court in Nationwide Mutual Insurance Co. v. Darden, 503 U.S. 318, 117 L. Ed. 2d 581, 112 S. Ct. 1344 (1992) to determine whether an employer/employee relationship exists, is applicable for that purpose under the ADA. The Court in Darden held that,
A court, in determining whether a hired party is an employee or an independent contractor under the general common law of agency, must consider the hiring party's right to control the manner and means by which the product is accomplished; among the other factors relevant to this inquiry are (1) the skill required, (2) the source of the instrumentalities and tools, (3) the location of the work, (4) the duration of the relationship between the parties, (5) whether the hiring party has the right to assign additional projects to the hired party, (6) the extent of the hired party's discretion over when and how long to work, (7) the method of payment, (8) the hired party's role in hiring and paying assistants, (9) whether the work is part of the regular business of the hired party, (10) whether the hiring party is in business, (11) the provision of employee benefits, and (12) the tax treatment of the hired party; since the common-law test contains no shorthand formula or magic phrase that can be applied to find the answer, all of the incidents of the relationship must be assessed and weighed with no one factor's being decisive. 503 U.S. at 323-324.
Back to the 2007 Opinions Page
Back to the Opinions Page