Aldin Associates Ltd. Partnership v. State ( 2022 )

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ALDIN ASSOCIATES LIMITED PARTNERSHIP v.
STATE OF CONNECTICUT ET AL.
(AC 44102)
Bright, C. J., and Moll and Harper, Js.
Syllabus
The plaintiff appealed from the judgment of the trial court granting the
motion to dismiss filed by the defendants, the state and the Commis-
sioner of Energy and Environmental Protection. The plaintiff owned
and operated more than five gasoline facilities that had underground
storage tanks used for petroleum products located on the premises and,
accordingly, was a responsible party and a mid-size station applicant
under the Act Concerning Underground Storage Tanks (§ 22a-449a et
seq.), which established a clean-up program to reimburse responsible
parties for costs incurred in remediating leaking underground storage
tanks. The plaintiff remediated some of its properties pursuant to the
act and submitted several applications to the Department of Energy
and Environmental Protection, seeking reimbursement for the costs it
incurred. At the time the plaintiff commenced this action, some of its
applications had been approved and paid, at least one had been approved
in 2009 but remained unpaid, and the commissioner had failed to act
on certain other applications. The plaintiff claimed that the commis-
sioner had unduly and unreasonably delayed the processing and payment
of its applications for reimbursement under the program and sought a
writ of mandamus ordering the commissioner to pay approved claims
and to adjudicate its pending claims. It also sought monetary damages
for the commissioner’s failure to reimburse the plaintiff and to adminis-
ter the program within a reasonably timely manner and further claimed
that the failure to pay any approved applications and any pending appli-
cations that should have been approved violated the takings clause of
article first, § 11, of the Connecticut constitution. The defendants moved
to dismiss the action for lack of subject matter jurisdiction on the ground
that the plaintiff’s claims were barred by sovereign immunity. Held:
1. The trial court erred by dismissing the plaintiff’s request for a writ of
mandamus because such a request was not barred by sovereign immu-
nity: contrary to the defendants’ claim, to the extent that there remained
applications for which the plaintiff had requested a hearing before the
commissioner, the plaintiff’s mandamus claim was not moot because
those applications had not been finally adjudicated for purposes of filing
an appeal to the Superior Court under the applicable statute (§ 22a-
449g) and the trial court could grant the plaintiff practical relief by
ordering the defendants to hold hearings in accordance with the act
(§ 22a-449f (h)); moreover, this court determined that, in accordance
with our Supreme Court’s decisions in C. R. Klewin Northeast, LLC v.
Fleming (284 Conn. 250) and Gold v. Rowland (296 Conn. 186), which
required claims for injunctive relief against the state to satisfy one of
the exceptions to the doctrine of sovereign immunity, there was no
categorical exception to sovereign immunity for applications for writs
of mandamus; furthermore, the trial court improperly determined that
the plaintiff’s requests for mandamus relief had to rise and fall together
and, therefore, improperly dismissed the portion of the first count of
the complaint seeking a writ of mandamus to compel the defendants
to act on its pending applications, as established precedent confirmed
that a court may dismiss a portion of a count of a complaint on the
basis of sovereign immunity, our Supreme Court’s decision in Miller v.
Egan (265 Conn. 301) determined that sovereign immunity will not bar
actions seeking declaratory or injunctive relief when the process of
statutory interpretation establishes that the state defendants acted
beyond their statutory authority, and the allegations in the plaintiff’s
complaint averred that the defendants’ failure to act on its pending
applications constituted actions in excess of the defendants’ statutory
authority; additionally, the plaintiff’s mandamus claim was not tanta-
mount to a claim for money damages, as the plaintiff was not seeking
compensatory damages for losses it suffered but, rather, sought to com-
pel the defendants to distribute funds to which the act entitled it, and
the defendants’ failure to pay the plaintiff’s approved claim could consti-
tute an act in excess of statutory authority because the act created a
mandatory duty to pay approved applications, regardless of the fact that
the statute did not specify a time period within which the payment must
be made.
2. The trial court properly determined that the state had not waived its
sovereign immunity under § 22a-449g and, accordingly, properly dis-
missed the counts of the plaintiff’s complaint that sought monetary
damages: the statutory authorization to appeal to the Superior Court
from an adverse decision by the commissioner under § 22a-449g did not
authorize an action for damages against the state; moreover, the plain
language of § 22a-449g, which does not refer to a general cause of action
against the state or to the defense of sovereign immunity, did not support
the plaintiff’s claim of implied waiver of sovereign immunity.
3. The trial court properly determined that the plaintiff had not alleged a
property interest sufficient to support a finding of an unconstitutional
taking under article first, § 11, of the state constitution: the plaintiff did
not possess any of the incidents of ownership identified in A. Gallo &
Co. v. Commissioner of Environmental Protection (309 Conn. 810), as
it never possessed the money it claimed it was owed, and, therefore,
could not use the money, earn income from it, or transfer it to another
party; moreover, because the plaintiff had no control over the disputed
funds, its interest in the money was not a vested property interest but,
rather, a contingent or expectant interest.
Argued May 12, 2021—officially released January 11, 2022
Procedural History
Application for a writ of mandamus to compel the
defendants to adjudicate and make payment on the
plaintiff’s claims in connection with the state’s under-
ground storage tank petroleum clean-up program, and
for other relief, brought to the Superior Court in the
judicial district of Hartford, where the court, Hon.
Robert B. Shapiro, judge trial referee, granted the defen-
dants’ motion to dismiss and rendered judgment
thereon, from which the plaintiff appealed to this court.
Reversed in part; further proceedings.
Richard P. Weinstein, with whom was Sarah Lingen-
held, for the appellant (plaintiff).
Daniel M. Salton, assistant attorney general, with
whom, on the brief, were William Tong, attorney gen-
eral, Clare Kindall, solicitor general, and Matthew I.
Levine, deputy associate attorney general, for the appel-
lees (defendants).
Opinion
MOLL, J. The plaintiff, Aldin Associates Limited Part-
nership, appeals from the judgment of the trial court
granting the motion to dismiss filed by the defendants,
the state of Connecticut and Katie Dykes, the Commis-
sioner of Energy and Environmental Protection (com-
missioner), claiming that the plaintiff’s action seeking
a writ of mandamus and money damages was barred
by sovereign immunity. On appeal, the plaintiff claims
that the court improperly granted the motion to dismiss
because (1) sovereign immunity does not bar its claim
for mandamus relief, (2) the state either expressly or
by force of a necessary implication waived its sovereign
immunity under General Statutes § 22a-449g, and (3)
the plaintiff alleged a property interest protected under
the takings clause of the Connecticut constitution. We
conclude that the plaintiff’s mandamus claim is not
barred by sovereign immunity and, accordingly, reverse
in part the judgment of the court.
The following undisputed facts and procedural his-
tory are relevant to this appeal. In 1989, the General
Assembly enacted legislation titled ‘‘An Act Concerning
Underground Storage Tanks’’ (act), which established
the underground storage tank petroleum clean-up fund
(fund). See Public Acts 1989, No. 89-373 (P.A. 89-373),
codified as amended at General Statutes (Rev. to 1991)
§ 22a-449a et seq. Initially, the act provided that the
fund shall be credited one third of the tax imposed
on gross earnings derived from the sale of petroleum
products under General Statutes § 12-587 and that the
fund is to be used by the commissioner to reimburse
responsible parties for costs incurred in remediating
leaking underground storage tanks.1 See P.A. 89-373,
§§ 3, 4 and 10. A responsible party could apply to the
clean-up fund review board (board) for reimbursement
from the fund. See P.A. 89-373, §§ 7 and 10.
The act was amended several times during the years
following its enactment in 1989. In 1994, the legislature
replaced the fund with the underground storage tank
petroleum clean-up account (account). See Public Acts
1994, No. 94-130, § 6. In 2009, the General Assembly
repealed General Statutes § 22a-449b, which required
that a portion of tax revenue collected under § 12-587
be deposited in the account, and replaced the account
with the underground storage tank petroleum clean-up
program (program) to reimburse responsible parties
‘‘within available appropriations . . . .’’ Public Acts,
Spec. Sess., June, 2009, No. 09-3, §§ 423 and 513, codi-
fied at General Statutes (Supp. 2010) § 22a-449c.
In 2012, the General Assembly replaced the board
with the commissioner and cancelled the program. See
Public Acts, Spec. Sess., June, 2012, No. 12-1, §§ 252
and 262, codified at General Statutes §§ 22a-449c and
22a-449s. General Statutes § 22a-449t established dead-
lines for applicants to apply for reimbursement under
the program based on the applicant’s status as a munici-
pal, small station, mid-size station, large station, or
other applicant. Section 261 of Public Act 12-1, which
was codified at General Statutes (Rev. to 2013) § 22a-
449r, established a reverse auction system. This system
was applicable ‘‘to all applications submitted by mid-
size or large station applicants before, on or after June
15, 2012, including, but not limited to, applications for
which payment or reimbursement has been ordered by
the commissioner but has not been made. . . .’’ General
Statutes § 22a-449r (c) (2).
Under the reverse auction system, ‘‘priority for pay-
ment or reimbursement shall be given to those appli-
cants who . . . agree to accept the greatest reduction
in the amount ordered for payment or reimbursement
by the commissioner under the program . . . .’’ Gen-
eral Statutes § 22a-449r (c) (4). Section 22a-449r (c)
(2) (A) provides in relevant part: ‘‘In the fiscal year
beginning July 1, 2012, no payment shall be made to
mid-size station applicants in excess of thirty-five cents
on each dollar the commissioner orders to be paid or
reimbursed under the program. In the fiscal year begin-
ning July 1, 2013, and each fiscal year thereafter, such
amount shall increase by ten cents on each dollar per
fiscal year and in such years no payment or reimburse-
ment shall be made in excess of the amount in effect
for such fiscal year. . . .’’
The plaintiff owns and operates more than five gaso-
line facilities where underground storage tanks used
for petroleum products are located and, therefore, is a
responsible party and a mid-size station applicant under
the act.2 The plaintiff remediated some of its properties
pursuant to the act and submitted several applications
to the Department of Energy and Environmental Protec-
tion seeking reimbursement for the costs it incurred.
At the time the plaintiff commenced this action, some
of the plaintiff’s applications had been approved and
paid, at least one application had been approved in 2009
but remained unpaid, and the commissioner had failed
to act on the plaintiff’s remaining applications.
In 2019, the plaintiff brought this action against the
defendants, claiming that the commissioner has unduly
and unreasonably delayed the processing and payment
of its applications for reimbursement under the pro-
gram. In the first count of its complaint, the plaintiff
sought a writ of mandamus ordering the commissioner
‘‘to pay approved claims and to adjudicate those pend-
ing claims [that] have not been adjudicated.’’ In the
second, fourth, and fifth counts, the plaintiff sought
monetary damages on the basis of its allegations that
the commissioner failed to reimburse it and failed to
administer the program within a reasonably timely man-
ner as required by the act (count two); violated the
equal protection clause under article first, § 20, of the
Connecticut constitution (count four); and violated the
due process clause under article first, § 10, of the Con-
necticut constitution (count five). In the third count,
the plaintiff claimed that the failure to pay any approved
but unpaid applications for reimbursement under the
act, as well as any pending applications that should be
approved, violated the takings clause of article first,
§ 11, of the Connecticut constitution.3
The defendants moved to dismiss the action for lack
of subject matter jurisdiction on the ground that the
plaintiff’s claims were barred by sovereign immunity.
The defendants argued that counts one, two, four, and
five of the plaintiff’s complaint are claims for money
damages that are barred by sovereign immunity because
there is no statutory waiver of sovereign immunity and
because the plaintiff did not obtain permission from
the claims commissioner to bring an action against the
state. See General Statutes § 4-147 (‘‘[a]ny person wish-
ing to present a claim against the state shall file with the
Office of the Claims Commissioner a notice of claim’’
requesting permission to sue state). The defendants
noted that the plaintiff previously had filed a claim with
the claims commissioner based on the same facts as
those alleged in the present action and that the claims
commissioner denied the claim. As to the third count of
the complaint, the defendants claimed that the plaintiff
failed to allege a property interest sufficient to support
its takings claim.
The plaintiff filed an objection to the motion to dis-
miss, along with an affidavit of Mark R. Temple, a
licensed environmental professional who had prepared
and filed applications for reimbursement on behalf of
the plaintiff. The plaintiff argued that sovereign immu-
nity does not bar its mandamus and takings claims and
that the state waived its sovereign immunity pursuant
to § 22a-449g, which provides that any applicant
aggrieved by a decision of the commissioner may appeal
to the Superior Court. In the affidavit, Temple asserted
that the plaintiff elected to receive 95 percent reim-
bursement of its approved claims in August, 2018, and
that there are available appropriations from which the
defendants should pay the plaintiff.
After a hearing, the court granted the defendants’
motion to dismiss. The court determined that there was
no statutory waiver of sovereign immunity, although it
analyzed General Statutes § 22a-449f (g), rather than
§ 22a-449g as relied on by the plaintiff. Accordingly, the
court dismissed the second, fourth, and fifth counts of
the complaint seeking monetary damages. The court
then addressed the first count of the complaint seeking
a writ of mandamus, considering separately the plain-
tiff’s requests for relief in that count. The court deter-
mined that the plaintiff’s request to compel the commis-
sioner to adjudicate all pending applications satisfied
the exception to sovereign immunity for actions by state
officers in excess of their statutory authority. The court
reasoned that § 22a-449f (h) imposes a mandatory duty
on the commissioner to ‘‘render a decision as to whether
. . . to order payment or reimbursement from the pro-
gram not more than ninety days after receipt of an
application . . . .’’ General Statutes § 22a-449f (h). The
court, however, determined that the request to compel
the commissioner to pay the plaintiff’s approved 2009
application is barred by sovereign immunity because
the act does not impose a duty on the commissioner
to pay approved applications within a specific time
frame. The court concluded that, although a portion of
the first count is not barred by sovereign immunity, the
plaintiff’s requests for mandamus ‘‘must rise and fall
together.’’ Accordingly, the court dismissed the first
count in its entirety. Finally, the court determined that
the third count, alleging an unconstitutional taking, was
barred by sovereign immunity because the plaintiff
failed to allege a protected property interest under the
takings clause. This appeal followed. Additional facts
and procedural history will be set forth as necessary.
On appeal, the plaintiff claims that the court erred
by dismissing its request for a writ of mandamus on
the ground of sovereign immunity because sovereign
immunity does not bar a request for mandamus relief.
The plaintiff further claims that, even if sovereign immu-
nity applied to mandamus actions, the court erred in
dismissing its first, second, fourth, and fifth counts
because the state either expressly or by force of a neces-
sary implication waived its sovereign immunity under
§ 22a-449g. Finally, the plaintiff claims that it properly
alleged a property interest protected under the takings
clause of the Connecticut constitution. We address each
claim in turn.
We begin by setting forth our standard of review
and the relevant legal principles regarding sovereign
immunity. ‘‘A motion to dismiss tests, inter alia,
whether, on the face of the record, the court is without
jurisdiction. . . . [O]ur review of the court’s ultimate
legal conclusion and resulting [determination] of the
motion to dismiss will be de novo. . . . When a . . .
court decides a jurisdictional question raised by a pre-
trial motion to dismiss, it must consider the allegations
of the complaint in their most favorable light. . . . In
this regard, a court must take the facts to be those
alleged in the complaint, including those facts necessar-
ily implied from the allegations, construing them in a
manner most favorable to the pleader. . . . The motion
to dismiss . . . admits all facts which are well pleaded,
invokes the existing record and must be decided upon
that alone.’’ (Internal quotation marks omitted.) Carter
v. Watson, 181 Conn. App. 637, 641, 187 A.3d 478 (2018).
‘‘Sovereign immunity relates to a court’s subject matter
jurisdiction over a case, and therefore presents a ques-
tion of law over which we exercise de novo review. . . .
‘‘The principle that the state cannot be sued without
its consent, or sovereign immunity, is well established
under our case law. . . . It has deep roots in this state
and our legal system in general, finding its origin in
ancient common law. . . . Not only have we recog-
nized the state’s immunity as an entity, but [w]e have
also recognized that because the state can act only
through its officers and agents, a suit against a state
officer concerning a matter in which the officer repre-
sents the state is, in effect, against the state. . . .
Exceptions to this doctrine are few and narrowly con-
strued under our jurisprudence.’’ (Citations omitted;
internal quotation marks omitted.) C. R. Klewin North-
east, LLC v. Fleming, 284 Conn. 250, 257–58, 932 A.2d
1053 (2007) (Klewin).
‘‘Our Supreme Court has recognized three exceptions
to sovereign immunity: (1) when the legislature, either
expressly or by force of a necessary implication, statu-
torily waives the state’s sovereign immunity . . . (2)
when an action seeks declaratory or injunctive relief
on the basis of a substantial claim that the state or one
of its officers has violated the plaintiff’s constitutional
rights . . . and (3) when an action seeks declaratory
or injunctive relief on the basis of a substantial allega-
tion of wrongful conduct to promote an illegal purpose
in excess of the officer’s statutory authority. . . . In
the absence of a proper factual basis in the complaint
to support the applicability of these exceptions, the
granting of a motion to dismiss on sovereign immunity
grounds is proper.’’ (Citation omitted; internal quotation
marks omitted.) Braham v. Newbould, 160 Conn. App.
294, 310–11, 124 A.3d 977 (2015).
I
We first address whether the first count of the plain-
tiff’s complaint seeking a writ of mandamus to compel
the defendants to pay its approved 2009 application and
to adjudicate those pending applications that have not
been adjudicated is barred by sovereign immunity. The
following additional facts and procedural history are
relevant to this claim.
As previously noted in this opinion, the court sepa-
rately addressed the plaintiff’s requests for relief in the
first count of its complaint and concluded that only the
plaintiff’s request to pay the approved application was
barred by sovereign immunity. The court nevertheless
dismissed the first count in its entirety, noting that
‘‘there is a dearth of decisional authority permitting the
court to grant or deny a motion to dismiss part of a
single count . . . .’’ After oral argument before this
court, we ordered the parties to file supplemental briefs
addressing whether the court properly dismissed the
first count of the plaintiff’s complaint in its entirety
notwithstanding its conclusion that the portion of the
plaintiff’s mandamus count seeking to compel the com-
missioner to adjudicate its pending applications is not
barred by sovereign immunity. See Paragon Construc-
tion Co. v. Dept. of Public Works, 130 Conn. App. 211,
221 n.10, 23 A.3d 732 (2011).
In Paragon Construction Co., this court noted ‘‘that
the appellate courts of this state have ordered the dis-
missal of portions of a count of a complaint on the basis
of sovereign immunity. See Fetterman v. University of
Connecticut, 192 Conn. 539, 557, 473 A.2d 1176 (1984)
(upholding trial court’s dismissal of portions of counts
contained in plaintiff’s complaint on basis of sovereign
immunity), superseded by statute on other grounds as
stated in Piteau v. Board of Education, 300 Conn. 667,
680–81, 689, 15 A.3d 1067 (2011); Ware v. State, 118
Conn. App. 65, 80–81, 983 A.2d 853 (2009) (reversing
trial court’s judgment denying defendant’s motion to
dismiss portions of counts contained in plaintiff’s com-
plaint on basis of sovereign immunity).’’ (Emphasis in
original.) Paragon Construction Co. v. Dept. of Public
Works, supra, 130 Conn. App. 221 n.10.
After the parties filed their supplemental briefs, the
defendants moved for permission to file a supplemental
brief regarding whether the portion of the plaintiff’s
mandamus count seeking to compel the adjudication
of all pending applications is moot. The defendants
claimed that, because the commissioner recently had
adjudicated all of the plaintiff’s pending applications,
this portion of the plaintiff’s mandamus count is moot.
The plaintiff filed an opposition to the defendants’
motion, claiming that one application had not been adju-
dicated and that the mandamus claim is not moot
because the plaintiff has the right to request a hearing
before the commissioner relating to those applications
on which the commissioner rendered an initial decision.
We granted the defendants’ motion and ordered the
parties to file supplemental briefs regarding the moot-
ness issue. Accordingly, we first consider whether the
plaintiff’s mandamus claim is moot.
A
In their second supplemental brief, the defendants
claimed that all of the plaintiff’s pending applications
had been adjudicated and argued that, ‘‘[b]ecause there
is no practical relief able to be granted to the plaintiff,
the court should conclude that the issue over the trial
court’s dismissal of said mandamus is now moot, and
thus decline to review that claim.’’ In its response, the
plaintiff acknowledged that the commissioner had
issued decisions on all of its pending applications but
argued that the mandamus claim is not moot as to nine
of those applications because the plaintiff has requested
hearings on those decisions pursuant to § 22a-449f (h).
The plaintiff concedes that the portion of its mandamus
count seeking to compel the defendants to adjudicate
its pending applications is moot as to the remaining
applications for which it has not requested a hearing.
We conclude that, to the extent there remain applica-
tions for which the plaintiff has requested a hearing,
the plaintiff’s mandamus claim is not moot.
‘‘Mootness implicates [this] court’s subject matter
jurisdiction and is thus a threshold matter for us to
resolve. . . . It is a [well settled] general rule that the
existence of an actual controversy is an essential requi-
site to appellate jurisdiction; it is not the province of
appellate courts to decide moot questions, discon-
nected from the granting of actual relief or from the
determination of which no practical relief can follow.
. . . An actual controversy must exist not only at the
time the appeal is taken, but also throughout the pen-
dency of the appeal. . . . When, during the pendency
of an appeal, events have occurred that preclude an
appellate court from granting any practical relief
through its disposition of the merits, a case has become
moot.’’ (Internal quotation marks omitted.) Burbank
v. Board of Education, 299 Conn. 833, 839, 11 A.3d
658 (2011).
In the present case, the plaintiff sought a writ of
mandamus ordering the defendants ‘‘to adjudicate those
pending claims [that] have not been adjudicated.’’ The
defendants claim that, for mootness purposes, they
have adjudicated all pending applications notwithstand-
ing the plaintiff’s right to seek a hearing before the
commissioner on those decisions pursuant to § 22a-449f
(h). We disagree.
Section 22a-449f (h) provides in relevant part: ‘‘The
commissioner shall render a decision as to whether
. . . to order payment or reimbursement from the pro-
gram not more than ninety days after receipt of an
application . . . . Any person aggrieved by the deci-
sion of the commissioner may, not later than twenty
days after the date of issuance of such decision, request
a hearing before the commissioner in accordance with
the provisions of [the Uniform Administrative Proce-
dure Act]. After such hearing, the commissioner shall
consider the information submitted and affirm or mod-
ify the decision on the application. . . .’’ Under § 22a-
449g, ‘‘[a]ny person aggrieved by a decision of the com-
missioner after a hearing pursuant to subsection (h)
of section 22a-449f may appeal from such decision to
the superior court for the judicial district of New Britain
within twenty days after the issuance of such decision.
. . .’’ (Emphasis added.)
As § 22a-449g makes clear, an applicant may appeal
to the Superior Court after a hearing under § 22a-449f
(h). The plaintiff sought the adjudication of its pending
applications, which we construe to include the final
adjudication of those applications for purposes of exer-
cising the plaintiff’s statutory right to bring an adminis-
trative appeal from the commissioner’s decision.
Accordingly, because certain of the plaintiff’s applica-
tions have not been finally adjudicated for purposes of
filing an appeal to the Superior Court under § 22a-449g,
the trial court could grant the plaintiff practical relief by
ordering the defendants to hold hearings in accordance
with § 22a-449f (h). Thus, because practical relief could
follow if we conclude that the court erred in dismissing
the portion of the plaintiff’s mandamus claim seeking
the adjudication of its pending applications, we con-
clude that this portion of the plaintiff’s mandamus claim
is not moot as to those applications for which the plain-
tiff has requested a hearing pursuant to § 22a-449f (h).
B
Having determined that the plaintiff’s mandamus
claim seeking to compel the defendants to act on its
pending applications is not moot, we now consider the
plaintiff’s claim that sovereign immunity does not bar
an application for a writ of mandamus. Specifically, the
plaintiff claims that no exception to sovereign immunity
is required for a writ of mandamus because ‘‘a manda-
mus action seeks performance of an act mandated by
legislation and therefore no such waiver is required.’’
The defendants claim that there is no categorical excep-
tion to sovereign immunity for applications for writs
of mandamus. We agree with the defendants.
It is well settled that ‘‘[m]andamus is an extraordinary
remedy, available in limited circumstances for limited
purposes. . . . It is fundamental that the issuance of
the writ rests in the discretion of the court, not an
arbitrary discretion exercised as a result of caprice
but a sound discretion exercised in accordance with
recognized principles of law. . . . That discretion will
be exercised in favor of issuing the writ only where the
plaintiff has a clear legal right to have done that which
he seeks. . . . The writ is proper only when (1) the
law imposes on the party against whom the writ would
run a duty the performance of which is mandatory and
not discretionary; (2) the party applying for the writ
has a clear legal right to have the duty performed; and
(3) there is no other specific adequate remedy.’’ (Inter-
nal quotation marks omitted.) Miles v. Foley, 253 Conn.
381, 391, 752 A.2d 503 (2000).
In support of its claim that a mandamus action is
exempt from sovereign immunity, the plaintiff cites
State ex rel. Adams v. Crawford, 99 Conn. 378, 382–83,
121 A. 800 (1923) (Adams), in which our Supreme Court
explained that, ‘‘because the [s]tate is interested in com-
pelling its agents to obey its commands, it is well settled
that mandamus will lie to compel the payment of money
by public officials when the duty to pay it is plain and
the claim is just, undisputed in amount, and based on
a clear legal right.’’ The defendants claim that Adams
does not support the plaintiff’s claim because (1) it was
decided eighty years before our Supreme Court held in
Miller v. Egan, 265 Conn. 301, 321, 828 A.2d 549 (2003),
that the exception to sovereign immunity for actions in
excess of statutory authority does not apply to actions
seeking monetary damages, and (2) Adams did not dis-
cuss sovereign immunity. We agree that Adams does
not stand for the proposition that sovereign immunity
is inapplicable as a matter of law to a request for manda-
mus relief.
In Miller, our Supreme Court explained that, ‘‘[i]n
the absence of legislative authority . . . we have
declined to permit any monetary award against the state
or its officials. . . . We have excepted declaratory and
injunctive relief from the sovereign immunity doctrine
on the ground that a court may fashion these remedies
in such a manner as to minimize disruption of govern-
ment and to afford an opportunity for voluntary compli-
ance with the judgment. . . .
‘‘When sovereign immunity has not been waived, the
claims commissioner is authorized by statute to hear
monetary claims against the state and determine
whether the claimant has a cognizable claim. See Gen-
eral Statutes §§ 4-141 through 4-165b. . . . This legisla-
tion expressly bars suits upon claims cognizable by the
claims commissioner except as he may authorize, an
indication of the legislative determination to preserve
sovereign immunity as a defense to monetary claims
against the state not sanctioned by the [claims] commis-
sioner or other statutory provisions. . . .
‘‘The legislative history and purpose of chapter 53 of
the General Statutes; General Statutes §§ 4-141 through
4-165[c]; entitled Claims Against the State, as well as the
comprehensive nature of the statutory scheme, support
our conclusion that, on a claim for money damages,
regardless of whether the plaintiffs have alleged that
state officers acted in excess of statutory authority, the
plaintiffs must seek a waiver from the claims commis-
sioner before bringing an action against the state in the
Superior Court. The [O]ffice of the [C]laims [C]ommis-
sioner was created by Public Acts 1959, No. 685. Prior
to 1959, a claimant who sought to sue the state for
monetary damages, in the absence of a statutory waiver
by the state, had but one remedy—namely, to seek relief
from the legislature, either in the form of a monetary
award or permission to sue the state.’’ (Citations omit-
ted; internal quotation marks omitted.) Miller v. Egan,
supra, 265 Conn. 316–18.
‘‘Thus, the comprehensive nature of the statutory
scheme, which specifies in detail under what circum-
stances a plaintiff may bring an action against employ-
ees individually, as well as when a plaintiff must seek
the authorization of the claims commissioner before
proceeding against the state, is consistent with the rule
we have established through our case law. That rule is
that the exception to sovereign immunity for actions
in excess of statutory authority or pursuant to an uncon-
stitutional statute, applies only to actions seeking
declaratory or injunctive relief, not to those seeking
monetary damages.’’ Id., 320–21.
After Miller was decided, our Supreme Court consid-
ered whether an application for a writ of mandamus
was barred by sovereign immunity in C. R. Klewin
Northeast, LLC v. Fleming, supra, 284 Conn. 250. In
Klewin, the plaintiff entered into a contract with the
Department of Public Works, and issues arose over
extra costs. Id., 253–54. The parties reached a settle-
ment providing that the state would pay $1.2 million to
the plaintiff, and the governor authorized the Depart-
ment of Public Works to settle the plaintiff’s claim in
that amount. Id., 254. After the plaintiff had not received
payment, it brought an action against the defendants,
the Commissioner of Public Works, the governor, and
the state comptroller seeking a writ of mandamus to
compel the defendants to comply with the settlement.
Id. The trial court rendered summary judgment in favor
of the plaintiff, concluding that the plaintiff was entitled
to mandamus relief because the governor’s formal
approval of the settlement established the plaintiff’s
legal right to payment and because the defendants had
a mandatory duty to pay the plaintiff pursuant to the
governor’s authorization. Id., 256.
On appeal to our Supreme Court, the defendants
claimed, inter alia, that ‘‘the plaintiff’s action [was]
barred by the doctrine of sovereign immunity because
(a) the action is tantamount to an action for money
damages, and (b) the defendants did not act in excess
of any statutory duty under [General Statutes] § 3-7 (c)
so as to except them from the protections of sovereign
immunity . . . .’’ Id., 257. Our Supreme Court noted
that ‘‘[t]he parties’ briefs . . . address the issue of sov-
ereign immunity primarily in the context of the ques-
tions of whether mandamus relief generally, and manda-
mus relief to enforce a settlement agreement
specifically, constitute the type of equitable relief that
falls within the exception to sovereign immunity. . . .
Because we conclude that the dispositive question is
whether § 3-7 (c) imposed a mandatory duty to pay the
plaintiff the $1.2 million under the settlement agree-
ment, such that the failure to do so could constitute an
act in excess of statutory authority, we consider the
parties’ arguments only as they bear on this issue.’’ Id.,
260 n.7. The court determined that § 3-7 (c) did not
create a mandatory duty in a department official to pay
the amount due under the settlement agreement and,
therefore, held that the defendants did not act in excess
of their statutory authority in failing to do so. Id., 267.
Accordingly, the court did not determine that a request
for mandamus relief is categorically exempt from the
doctrine of sovereign immunity.
In addition, in Gold v. Rowland, 296 Conn. 186, 214,
994 A.2d 106 (2010), our Supreme Court rejected a claim
similar to the plaintiff’s claim in the present case. In
Gold, the plaintiff claimed that the exception to sover-
eign immunity for actions in excess of statutory author-
ity ‘‘may be applied to all claims of injunctive relief,
regardless of whether the state has acted in excess of its
statutory authority or pursuant to an unconstitutional
statute.’’ Id. In rejecting that claim, the court stated:
‘‘The plaintiff has not cited . . . and our research has
not revealed, any case in which this court has concluded
that a claim for injunctive relief that did not involve
conduct by the state in excess of its statutory authority
or pursuant to an unconstitutional statute was not
barred by sovereign immunity. Indeed, the cases are to
the contrary. See, e.g., C. R. Klewin Northeast, LLC v.
Fleming, [supra, 284 Conn. 259–67] (mandamus action
in which plaintiff sought order requiring state to pay
plaintiff pursuant to settlement agreement did not come
within ‘in excess of statutory authority’ exception to
sovereign immunity in absence of statute requiring state
to implement settlement agreements); Alter & Associ-
ates, LLC v. Lantz, 90 Conn. App. 15, 22–23, 876 A.2d
1204 (2005) (alleged failure of state to honor regulation
concerning obligations to contract bidders, without
more, did not meet ‘in excess of statutory authority’
exception to sovereign immunity doctrine for equitable
claims).’’ Gold v. Rowland, supra, 213–14.
Thus, in Klewin and Gold, our Supreme Court deter-
mined that claims for injunctive relief against the state
must satisfy one of the exceptions to the doctrine of
sovereign immunity. Accordingly, in light of our
Supreme Court’s reasoning in Klewin and Gold, we
reject the plaintiff’s claim that sovereign immunity does
not apply to an application for a writ of mandamus.4
C
We next consider whether the court properly dis-
missed the portion of the plaintiff’s mandamus claim
seeking to compel the defendants to adjudicate its pend-
ing applications for reimbursement.
In dismissing the first count of the complaint in its
entirety, as all parties now acknowledge, the court over-
looked precedent establishing that a court may dismiss
only a portion of a count of a complaint on the basis
of sovereign immunity. See Paragon Construction Co.
v. Dept. of Public Works, supra, 130 Conn. App. 221n.10 (‘‘appellate courts of this state have ordered the
dismissal of portions of a count of a complaint on the
basis of sovereign immunity’’ (emphasis in original)).
Accordingly, the court improperly determined that the
plaintiff’s requests for relief in the first count of its
complaint must rise and fall together and, therefore,
improperly dismissed the portion of the first count seek-
ing a writ of mandamus to compel the defendants to
act on its pending applications.
In their first supplemental brief, the defendants
claimed that, although the court had the authority to
dismiss a portion of a single count on the basis of
sovereign immunity, the court erred in concluding that
the exception to sovereign immunity for actions by a
state official in excess of his or her statutory authority
applied to the plaintiff’s mandamus claim. The defen-
dants argue that, in analyzing this exception, the court
erred by failing to address whether the plaintiff’s com-
plaint included allegations of wrongful conduct for an
illegal purpose. We are not persuaded.
In its complaint, the plaintiff alleged that ‘‘[t]he appli-
cable statutes compel the commissioner . . . to act
upon said applications, but notwithstanding that said
applications were submitted years ago, the commis-
sioner and her predecessor [have] failed to act upon
said applications . . . .’’ In its memorandum of deci-
sion, the court noted that ‘‘the plaintiff has not explicitly
alleged in its complaint that a state official has acted
in excess of its statutory authority . . . . Nonetheless,
the plaintiff has alleged that the [act] compels the defen-
dants to act upon the plaintiff’s applications for reim-
bursement and that their failure to do so may only be
remedied with a writ of mandamus. . . . Since the
court, in deciding a motion to dismiss, must consider
the allegations in their most favorable light, it is evident
that the plaintiff profess[es] to claim breaches of the
statutory obligations of the commissioner that are in
excess of the defendants’ statutory authority.’’ (Cita-
tions omitted; internal quotation marks omitted.)
In support of their argument that the plaintiff was
required to allege that the defendants acted solely to
further their own illegal scheme and not to carry out
government policy, the defendants cite our Supreme
Court’s decision in Shay v. Rossi, 253 Conn. 134, 170–72,
749 A.2d 1147 (2000), overruled in part by Miller v.
Egan, 265 Conn. 301, 325, 828 A.2d 549 (2003), in which
the court considered the contours of the exception for
acts in excess of an official’s statutory authority. In
Shay, the court noted that case law from other jurisdic-
tions ‘‘suggest[ed] that all it takes to trigger the doctrine
is to establish, by a process of statutory interpretation,
that the defendants’ conduct was unauthorized.’’ Id.,
171. The court explained that it disagreed with such a
suggestion because ‘‘the doctrine of sovereign immunity
would be too easily overcome. It would mean, for exam-
ple, that any tort committed by a state official would
not be subject to sovereign immunity, because it could
hardly be contended that any such official was statuto-
rily authorized to commit a tort.’’ Id., 172.
In Miller v. Egan, supra, 265 Conn. 321, however, our
Supreme Court held ‘‘that the exception to sovereign
immunity for actions in excess of statutory authority
or pursuant to an unconstitutional statute, applies only
to actions seeking declaratory or injunctive relief, not
to those seeking monetary damages.’’ Thus, Miller over-
ruled Shay insofar as the court in Shay had held ‘‘that
sovereign immunity does not bar monetary damages
actions against state officials acting in excess of their
statutory authority.’’ Id., 325. The court in Miller
explained that ‘‘[t]he primary reason that we declined
to adopt the broader definition of the exception [in
Shay] was our concern that if we did so, the exception
to sovereign immunity would . . . swallow the rule
. . . and the doctrine of sovereign immunity would be
too easily overcome. . . . [T]he concerns we
expressed in Shay no longer exist. That is, because the
exception is limited to actions seeking declaratory or
injunctive relief, it is sufficiently narrow and there is
simply no danger that the exception will swallow the
rule. Therefore, we now conclude that when a process
of statutory interpretation establishes that the state offi-
cials acted beyond their authority, sovereign immunity
does not bar an action seeking declaratory or injunctive
relief.’’ (Citations omitted; internal quotation marks
omitted.) Id., 326–27.
In light of our Supreme Court’s conclusion in Miller
that sovereign immunity will not bar actions seeking
declaratory or injunctive relief when the process of
statutory interpretation establishes that the state defen-
dants acted beyond their statutory authority, the defen-
dants’ argument regarding the absence of allegations
of wrongful conduct for an illegal purpose is unavailing.
Accordingly, we agree with the court that, when consid-
ered in their most favorable light, the allegations in the
plaintiff’s complaint averred that the defendants’ failure
to act on its pending applications constituted actions
in excess of the defendants’ statutory authority. There-
fore, the court properly considered this exception to
sovereign immunity and determined that sovereign
immunity does not bar this portion of the plaintiff’s
mandamus claim.
D
With respect to the portion of the plaintiff’s manda-
mus claim seeking an order requiring the payment of
its approved 2009 application, we first address the
defendants’ argument that such claim ultimately seeks
monetary relief and, therefore, should be treated as
a claim for money damages pursuant to this court’s
decision in Bloom v. Dept. of Labor, 93 Conn. App. 37,
41, 888 A.2d 115, cert. denied, 277 Conn. 912, 894 A.2d
992 (2006). The plaintiff claims that Bloom is distin-
guishable because it did not involve a writ of mandamus
and argues that this court’s discussion regarding sover-
eign immunity in Bloom was dicta.
In Bloom, the plaintiff applied for unemployment
compensation benefits after his employment was termi-
nated, and the administrator of the Unemployment
Compensation Act (administrator) denied the applica-
tion. Id., 38. The administrator’s decision was affirmed
by an appeals referee and by the board of review. Id.The plaintiff then filed an administrative appeal in the
Superior Court, and the court dismissed the appeal.
Id. Approximately one year after the dismissal of his
administrative appeal, the plaintiff filed an action
against the Department of Labor, seeking an order com-
pelling the department to hold a new hearing on his
unemployment claim. Id., 38–39. The Department of
Labor moved to dismiss the action on the grounds of
sovereign immunity and the plaintiff’s failure to appeal
from the trial court’s decision dismissing his administra-
tive appeal. Id., 38. The court denied the motion to
dismiss, and the Department of Labor appealed. Id., 39.
On appeal, this court agreed with the defendant that
the plaintiff’s failure to appeal from the trial court’s
decision dismissing his administrative appeal con-
cluded his cause of action for unemployment benefits.
Id., 39. The court then noted that ‘‘[t]he plaintiff cannot
overcome the state’s sovereign immunity by bringing
an identical claim arising from the same underlying
proceeding under the guise of a declaratory judgment.
. . . The mere framing of the complaint as one for
declaratory judgment does not, in and of itself, make
it so. . . . Notwithstanding the plaintiff’s claims that
he is looking only to protect his reputation and not to
collect money damages, in his complaint for relief he
seeks a mandatory injunction ordering a new unemploy-
ment hearing, the purpose of which is to collect dam-
ages in the form of unemployment benefits. Therefore,
because the plaintiff’s claim ultimately is an action for
money damages, the doctrine of sovereign immunity
bars his action.’’ (Citations omitted.) Id., 41.
In the present case, the court rejected the defendants’
claim that the plaintiff’s application for a writ of manda-
mus is tantamount to a claim for money damages, con-
cluding that, ‘‘[u]nlike the plaintiff in Bloom, who was
clearly seeking money damages after having exhausted
the bulk of his administrative remedies, the plaintiff
here is attempting to obtain an initial decision by the
agency, which may or may not lead to reimbursement.
. . . Moreover, [t]he fact that a judicial remedy may
require one party to pay money to another is not suffi-
cient reason to characterize the relief as money dam-
ages.’’ (Citation omitted; internal quotation marks omit-
ted.)
We agree with the plaintiff that Bloom is distinguish-
able from the present case. The plaintiff in Bloom
sought to get a second bite at the proverbial apple after
he failed to appeal from the dismissal of his administra-
tive appeal, whereas the plaintiff in the present case
has not been able to pursue his administrative remedies.
Moreover, the plaintiff in the present case seeks to
compel the defendants to act in accordance with their
statutory duties, whereas the plaintiff in Bloom sought
to compel the Department of Labor to hold a new hear-
ing on his unemployment claim, which was not provided
for by statute.
In addition, we conclude that the plaintiff’s manda-
mus claim is not tantamount to a claim for money dam-
ages. The United States Supreme Court has explained:
‘‘Our cases have long recognized the distinction
between an action at law for damages—which are
intended to provide a victim with monetary compensa-
tion for an injury to his person, property, or reputa-
tion—and an equitable action for specific relief—which
may include an order providing for the reinstatement
of an employee with backpay, or for the recovery of
specific property or monies, ejectment from land, or
injunction either directing or restraining the defendant
officer’s actions. . . . The fact that a judicial remedy
may require one party to pay money to another is not
a sufficient reason to characterize the relief as money
damages.’’ (Citation omitted; emphasis omitted; inter-
nal quotation marks omitted.) Bowen v. Massachusetts,
487 U.S. 879, 893, 108 S. Ct. 2722, 101 L. Ed. 2d 749(1988).
‘‘The term money damages . . . normally refers to
a sum of money used as compensatory relief. Damages
are given to the plaintiff to substitute for a suffered
loss, whereas specific remedies are not substitute reme-
dies at all, but attempt to give the plaintiff the very thing
to which he was entitled.’’ (Citation omitted; emphasis
omitted; internal quotation marks omitted.) Id., 895.
In Bowen, the court held that ‘‘[t]he [s]tate’s suit to
enforce [42 U.S.C.] § 1396b (a) of the Medicaid Act,
which provides that the [s]ecretary ‘shall pay’ certain
amounts for appropriate Medicaid services, is not a
suit seeking money in compensation for the damage
sustained by the failure of the [f]ederal [g]overnment
to pay as mandated; rather, it is a suit seeking to enforce
the statutory mandate itself, which happens to be one
for the payment of money. The fact that the mandate
is one for the payment of money must not be confused
with the question whether such payment, in these cir-
cumstances, is a payment of money as damages or as
specific relief.’’ (Emphasis in original; footnote omit-
ted.) Id., 900–901.
Likewise, in the present case, the plaintiff is not seek-
ing compensatory damages for losses it suffered but,
rather, seeks funds to which the act entitles it. Thus,
we conclude that the plaintiff’s mandamus claim is not
tantamount to a claim for money damages.
E
Finally, we consider whether the court properly con-
cluded that, because the act does not impose a duty to
pay approved applications within a specific time period,
the defendants’ failure to reimburse the plaintiff is not
an act in excess of their statutory authority.5
The construction of a statute is a question of law
subject to de novo review. See C. R. Klewin Northeast,
LLC v. Fleming, supra, 284 Conn. 260. ‘‘When constru-
ing a statute, [o]ur fundamental objective is to ascertain
and give effect to the apparent intent of the legislature.
. . . In other words, we seek to determine, in a rea-
soned manner, the meaning of the statutory language
as applied to the facts of [the] case, including the ques-
tion of whether the language actually does apply. . . .
In seeking to determine that meaning, General Statutes
§ 1-2z directs us first to consider the text of the statute
itself and its relationship to other statutes. If, after
examining such text and considering such relationship,
the meaning of such text is plain and unambiguous and
does not yield absurd or unworkable results, extratex-
tual evidence of the meaning of the statute shall not
be considered. . . . When a statute is not plain and
unambiguous, we also look for interpretive guidance
to the legislative history and circumstances surrounding
its enactment, to the legislative policy it was designed to
implement, and to its relationship to existing legislation
and [common-law] principles governing the same gen-
eral subject matter . . . .’’ (Internal quotation marks
omitted.) Id., 261.
The plaintiff argues that, although the court properly
held that the defendants were under a statutory duty
to pay the approved 2009 application, it improperly
determined that, because the statute did not require that
the defendants reimburse applicants within a particular
time period, their failure to pay the plaintiff’s approved
claim does not constitute an act in excess of statutory
authority. We agree.
As previously noted in this opinion, the court deter-
mined that the plaintiff’s request to compel the commis-
sioner to adjudicate all pending applications satisfied
the exception to sovereign immunity for actions by state
officers in excess of their statutory authority because
§ 22a-449f (h) imposes a mandatory duty on the com-
missioner to ‘‘render a decision as to whether . . . to
order payment or reimbursement from the program not
more than ninety days after receipt of an application
. . . .’’ The court, however, determined that the request
to compel the commissioner to pay the plaintiff’s
approved 2009 application is barred by sovereign immu-
nity because the act does not impose a duty on the
commissioner to pay approved applications within a
specific time frame.
‘‘The test to be applied in determining whether a
statute is mandatory or directory is whether the pre-
scribed mode of action is the essence of the thing to
be accomplished, or in other words, whether it relates
to a matter of substance or a matter of convenience.
. . . If it is a matter of substance, the statutory provi-
sion is mandatory. . . . If, however, the . . . provi-
sion is designed to secure order, system and dispatch
in the proceedings, it is generally held to be directory
. . . . Definitive words, such as must or shall, ordi-
narily express legislative mandates of nondirectory
nature. . . . As we recently noted, the word shall cre-
ates a mandatory duty when it is juxtaposed with [a]
substantive action verb.’’ (Internal quotation marks
omitted.) State v. Reddy, 135 Conn. App. 65, 72, 42 A.3d
406 (2012).
Section 22a-449c (a) (2) provides in relevant part that
‘‘[t]he program shall provide money for reimbursement
or payment pursuant to this section . . . within avail-
able appropriations, to responsible parties . . . .’’ Sec-
tion 22a-449f (c) provides in relevant part that ‘‘[t]he
commissioner shall order reimbursement or payment
from the program for any cost paid or incurred, as the
case may be, [if all of the conditions for reimbursement
are satisfied] . . . .’’ (Emphasis added.) In the event
that an applicant files an administrative appeal from the
commissioner’s decision pursuant to § 22a-449g, ‘‘any
portion of the ordered reimbursement or payment that
is approved and not the subject of such appeal, shall
be paid by the commissioner, within available appropri-
ations and subject to the provisions of section 22a-449r,
notwithstanding the pendency of the appeal.’’ (Empha-
sis added.) General Statutes § 22a-449g.
Section 22a-449r (a) (1) establishes the order of prior-
ity for payments from the program and directs that
‘‘any amount available for purposes of paying applicants
under the underground storage tank clean-up program
shall be distributed as follows: (A) [o]ne-quarter for
payment or reimbursement to municipal applicants and
other applicants; (B) one-quarter for payment or reim-
bursement to small station applicants; (C) one-quarter
for payment or reimbursement to mid-size station appli-
cants; and (D) one-quarter for payment or reimburse-
ment to large station applicants. If at any time there is
an amount remaining in one such category and if in
such category there are no pending applications or
applications for which payment or reimbursement has
been ordered by the commissioner but has not been
made . . . then such amount shall be redistributed for
payment or reimbursement in the following order of
priority: (i) [f]irst to municipal applicants and other
applicants, (ii) if after redistribution pursuant to sub-
clause (i) of this subdivision there is an amount
remaining, then to small station applicants, (iii) if after
redistribution pursuant to subclauses (i) and (ii) of this
subdivision there is an amount remaining, then to mid-
size station applicants, and (iv) if after redistribution
pursuant to subclauses (i), (ii) and (iii) of this subdivi-
sion there is an amount remaining, then to large station
applicants.’’ (Emphasis added.)
Section 22a-449r (c) (2) (A) provides in relevant part:
‘‘In the fiscal year beginning July 1, 2012, no payment
shall be made to mid-size station applicants in excess
of thirty-five cents on each dollar the commissioner
orders to be paid or reimbursed under the program. In
the fiscal year beginning July 1, 2013, and each fiscal
year thereafter, such amount shall increase by ten cents
on each dollar per fiscal year and in such years no
payment or reimbursement shall be made in excess of
the amount in effect for such fiscal year. After such
amount reaches one dollar, it shall no longer
increase. . . .’’
Section 22a-449r (c) (4) provides in relevant part:
‘‘Among mid-size station applicants . . . priority for
payment or reimbursement shall be given to those appli-
cants who . . . agree to accept the greatest reduction
in the amount ordered for payment or reimbursement
by the commissioner under the program, provided such
payment shall not exceed the amount set forth in sub-
paragraph (A) or (B) of subdivision (2) of this subsec-
tion, as applicable. . . . If there are insufficient funds
to satisfy payment and reimbursement of mid-size and
large station applicants, the prioritization established
pursuant to this subsection shall carry over to the subse-
quent fiscal quarter, and if necessary, from year to year,
provided such prioritization may change based upon a
subsequent reduced payment election submitted pursu-
ant to subparagraph (A) (ii) of subdivision (3) of this
subsection.’’
We conclude that the relevant statutes are plain and
unambiguous and create a mandatory duty to pay
approved applications pursuant to the act. In the act,
the word ‘‘shall’’ is juxtaposed with the substantive
action verb ‘‘paid’’ when describing the commissioner’s
role under the act. See State v. Reddy, supra, 135 Conn.
App. 72 (‘‘the word shall creates a mandatory duty when
it is juxtaposed with [a] substantive action verb’’ (inter-
nal quotation marks omitted)); cf. C. R. Klewin North-
east, LLC v. Fleming, supra, 284 Conn. 263 (determining
that statutory language ‘‘ ‘shall constitute sufficient
authority . . . to pay’ ’’ did not create mandatory duty
because ‘‘ ‘shall’ ’’ was ‘‘not juxtaposed with the sub-
stantive action verb’’). Section 22a-449g expressly pro-
vides that ‘‘any portion of the ordered reimbursement
or payment that is approved and not the subject of
such appeal, shall be paid by the commissioner, within
available appropriations and subject to the provisions
of section 22a-449r, notwithstanding the pendency of
the appeal.’’ (Emphasis added.) Accordingly, we con-
clude that the act imposes a mandatory duty on the
defendants to pay the approved 2009 application.
We further conclude that the court improperly deter-
mined that, in the absence of any requirement that the
payment be made in a specific time period, the defen-
dants’ failure to do so could not be an act in excess
of statutory authority. The act requires that approved
applications for reimbursement be paid if certain condi-
tions are met. General Statutes § 22a-449f (c). If those
conditions are met, the fact that the statute does not
specify a specific time period within which payment
must be made does not affect the mandatory nature of
the duty to pay. Indeed, § 22a-449r (a) (1) expressly
provides that ‘‘any amount available for purposes of
paying applicants under the underground storage tank
clean-up program shall be distributed . . . .’’ (Empha-
sis added.) Thus, if, as the plaintiff alleges, there are
funds available for purposes of paying the plaintiff, the
act imposes a mandatory duty on the defendants to pay
the plaintiff. Accordingly, the first count of the plaintiff’s
complaint seeking a writ of mandamus ordering the
defendants to pay its approved application is not barred
by sovereign immunity.6
II
We next address the plaintiff’s claim that the legisla-
ture, through § 22a-449g, waived the state’s sovereign
immunity. The plaintiff notes that the court analyzed
§ 22a-449f (g), rather than § 22a-449g, and argues that
§ 22a-449g, either expressly or by force of a necessary
implication, waives the state’s sovereign immunity. The
defendants respond that the statutory authorization to
appeal to the Superior Court from an adverse decision
by the commissioner under § 22a-449g does not autho-
rize an action for damages against the state. We agree
with the defendants.
Whether § 22a-449g either expressly or by force of
a necessary implication waives the state’s sovereign
immunity presents a question of statutory interpretation
over which we exercise plenary review. See Ware v.
State, supra, 118 Conn. App. 87. It is well established
‘‘that statutes in derogation of sovereign immunity
should be strictly construed. . . . Where there is any
doubt about their meaning or intent they are given the
effect which makes the least rather than the most
change in sovereign immunity.’’ (Internal quotation
marks omitted.) C. R. Klewin Northeast, LLC v. Flem-
ing, supra, 284 Conn. 259.
Section 22a-449g provides: ‘‘Any person aggrieved by
a decision of the commissioner after a hearing pursuant
to subsection (h) of section 22a-449f may appeal from
such decision to the superior court for the judicial dis-
trict of New Britain within twenty days after the issu-
ance of such decision. Such appeal shall be in accor-
dance with [the Uniform Administrative Procedure Act,
General Statutes § 4-166 et seq.]. All such appeals shall
be heard by the court without a jury, and shall have
precedence in the order of trial as provided in section
52-192. If an appeal is taken pursuant to this section,
any portion of the ordered reimbursement or payment
that is approved and not the subject of such appeal,
shall be paid by the commissioner, within available
appropriations and subject to the provisions of section
22a-449r, notwithstanding the pendency of the appeal.’’
We conclude that the legislature did not expressly
waive the state’s sovereign immunity by providing appli-
cants under the act the right to bring an administrative
appeal. When the legislature intends to waive the state’s
sovereign immunity expressly, it knows how to do so.
For example, the legislature has waived the state’s sov-
ereign immunity with respect to contracts ‘‘for the
design, construction, construction management, repair
or alteration of any highway, bridge, building or other
public works of the state . . . .’’ General Statutes § 4-
61 (a). Section 4-61 (a) provides in relevant part that
any person who has a claim arising under such a con-
tract with the state may ‘‘bring an action against the
state to the superior court for the judicial district of
Hartford for the purpose of having such claims deter-
mined . . . . All legal defenses except governmental
immunity shall be reserved to the state.’’
The express waiver in § 4-61 (a) provides in relevant
part that an individual may ‘‘bring an action against the
state’’ and specifically prohibits the state from asserting
the defense of ‘‘governmental immunity . . . .’’ In con-
trast, § 22a-449g simply provides an applicant under the
act the right to appeal from an adverse decision by the
commissioner to the Superior Court pursuant to the
Uniform Administrative Procedure Act. Section 22a-
449g does not refer to a general cause of action against
the state or to the defense of sovereign immunity. Thus,
contrary to the plaintiff’s contention, § 22a-449g does
not expressly waive the state’s sovereign immunity.
Section 22a-449g also does not waive sovereign
immunity by force of a necessary implication. As our
Supreme Court has explained, ‘‘in order for statutory
language to give rise to a necessary implication that
the state has waived its sovereign immunity, [t]he prob-
ability . . . must be apparent, and not a mere matter
of conjecture; but . . . necessarily such that from the
words employed an intention to the contrary cannot
be supposed. . . . In other words, in order for a court
to conclude that a statute waives sovereign immunity
by force of necessary implication, it is not sufficient
that the claimed waiver reasonably may be implied from
the statutory language. It must, by logical necessity,
be the only possible interpretation of the language.’’
(Citation omitted; emphasis in original; footnote omit-
ted; internal quotation marks omitted.) Envirotest Sys-
tems Corp. v. Commissioner of Motor Vehicles, 293
Conn. 382, 388–90, 978 A.2d 49 (2009).
The plaintiff argues that § 22a-449g ‘‘expressly
authorized applicants, such as [the plaintiff], to bring
a lawsuit in the Superior Court. . . . The purpose of
that lawsuit would be to consider whether the amount
ordered by the commissioner is correct, or incorrect,
and thus authorizes a suit against the state to determine
liability. . . . Even if this court believes it is not
express, it certainly waives the state’s sovereign immu-
nity by force of a necessary implication.’’ (Citation omit-
ted.)
Section 22a-449g authorizes an applicant to appeal
to the Superior Court pursuant to the Uniform Adminis-
trative Procedure Act. Significantly, it does not autho-
rize an applicant to ‘‘bring a lawsuit in the Superior
Court.’’ The plaintiff essentially argues that, because an
administrative appeal challenging the commissioner’s
final decision would require the court to consider the
amount of money to be paid to the applicant, it necessar-
ily follows that the state has waived its sovereign immu-
nity for purposes of permitting damages claims to be
brought against it relating to applications under the act.
That conclusion, however, is not a necessary one. As
our Supreme Court emphasized, ‘‘it is not sufficient that
the claimed waiver reasonably may be implied from
the statutory language. It must, by logical necessity,
be the only possible interpretation of the language.’’
(Emphasis in original.) Envirotest Systems Corp. v.
Commissioner of Motor Vehicles, supra, 293 Conn. 389–
90. Simply put, the plain language of the statute, which
authorizes an applicant aggrieved by the commission-
er’s decision to file an administrative appeal, does not
support the plaintiff’s claim of an implied waiver of
sovereign immunity. Mindful that statutes in derogation
of sovereign immunity must be strictly construed, we
conclude that the only possible interpretation of § 22a-
449g is that an applicant may bring an administrative
appeal to challenge an adverse decision by the commis-
sioner. Accordingly, the court properly determined that
the state had not waived its sovereign immunity under
the act and, therefore, properly dismissed the second,
fourth, and fifth counts of the plaintiff’s complaint.
III
Last, the plaintiff claims that the court improperly
dismissed the third count of its complaint asserting
a violation of the takings clause of the Connecticut
constitution. The plaintiff argues that it has a constitu-
tionally protected property interest in the payment of
its approved 2009 application.7 We are not persuaded.
Article first, § 11, of the Connecticut constitution pro-
vides that ‘‘[t]he property of no person shall be taken
for public use, without just compensation therefor.’’
‘‘[M]oney is certainly property . . . . In order to state
a claim under the takings clause, however, a plaintiff
first must establish that he or she possesses a constitu-
tionally protected interest in the disputed property.
. . . Because the [c]onstitution protects rather than
creates property interests, the existence of a property
interest is determined by reference to existing rules or
understandings that stem from an independent source
such as state law. . . . As a consequence, [w]hether
one’s interest or entitlement rises to the level of a pro-
tected property right depends upon the extent to which
one has been made secure by [s]tate or [f]ederal law
in its enjoyment. . . . For a property right to be consid-
ered vested, in contrast to one that is expectant or
contingent, it must function as a present interest.’’ (Cita-
tions omitted; internal quotation marks omitted.) A.
Gallo & Co. v. Commissioner of Environmental Protec-
tion, 309 Conn. 810, 824–25, 73 A.3d 693 (2013) (Gallo),
cert. denied, 572 U.S. 1028, 134 S. Ct. 1540, 188 L. Ed.
2d 581 (2014).
In Gallo, twelve beer and soft drink distributors
brought an action against the then Commissioner of
Environmental Protection seeking a declaratory judg-
ment and damages for the ‘‘retroactive taking of their
property under certain provisions of Public Acts 2009,
No. 09-1, § 15 (P.A. 09-1) . . . .’’ Id., 812–13. By statute,
the plaintiffs were required to collect a five cent refund
value on each beverage container sold to a retailer and
to reimburse the retailer when the empty container was
returned. Id., 814–15. The plaintiffs were required ‘‘to
open a special interest-bearing account’’ and to deposit
in the account the amount of the refund values for each
container sold. (Internal quotation marks omitted.) Id.,
816. ‘‘All interest, dividends and returns earned on the
special account were required to be paid into such
account, and such moneys were required to be kept
separate and apart from all other moneys in the posses-
sion [of] the [plaintiffs].’’ (Internal quotation marks
omitted.) Id., 816–17. The plaintiffs were required to
pay any reimbursement of the refund value from that
account. Id., 817. Public Act 09-1, which was made appli-
cable for a period of four months prior to its effective
date from December 1, 2008, through March 31, 2009,
‘‘provided that all unclaimed [beverage container]
deposits accruing during the designated four month
period, which previously had been retained by the plain-
tiffs, henceforth must be paid to the state.’’ Id., 813 and
n.3. The trial court rendered judgment for the plaintiffs,
concluding that the retroactive provision of P.A. 09-1
‘‘requiring the plaintiffs to pay to the state any
unclaimed deposits and accrued interest from Decem-
ber 1, 2008, through March 31, 2009, was a taking of their
property without just compensation . . . .’’ Id., 820.
On appeal, our Supreme Court ‘‘look[ed] for incidents
of ownership to determine whether the plaintiffs had
a property interest in the unclaimed deposits that war-
ranted constitutional protection. Incidents of owner-
ship include (1) the right to use the property . . . (2)
the right to earn income from the property and to con-
tract over its terms with other individuals . . . and (3)
the right to dispose of, or transfer, ownership rights
permanently to another party.’’ (Citations omitted.) Id.,
838. The court concluded ‘‘that the plaintiffs had no
property interest in the unclaimed deposits because
their right to use and control the deposits was severely
limited . . . . [A]lthough the act did not address dispo-
sition of the unclaimed deposits, it stated in specific
terms how such funds were to be managed, including
that they were to be deposited in a special interest
bearing account at the Connecticut branch of a financial
institution. Even more significant, the [statute] con-
tained no provision allowing the unclaimed deposits to
be withdrawn by the distributors. In short, the [statute]
did not allow the distributors to withdraw or control
the funds placed in the special accounts beyond the
parameters established by the . . . provisions [of P.A.
09-1]. Thus, the distributors had no property interest
in the unclaimed deposits because they possessed none
of the normal incidents of ownership.’’ Id., 838–39.
In the present case, the plaintiff argues that it ‘‘has
incidents of ownership evincing a property interest in
the amounts due [to the plaintiff] pursuant to the [act].
[The plaintiff] has an unequivocal right to the money
and the statute places no restrictions on [the plaintiff’s]
ability to use the money.’’ The defendants respond that
‘‘the plaintiff has no more than a future interest in pay-
ment of the approved application, because as the plain-
tiff alleges, the approval has not yet been acted upon
by the state.’’ We agree with the defendants.
Although the plaintiff asserts that it has a vested
property interest in the approved payment, the plaintiff
acknowledges that it ‘‘cannot use the money, or earn
interest’’ because the defendants have not paid the
plaintiff. Thus, despite the plaintiff’s bare assertion to
the contrary, it does not possess any of the incidents
of ownership identified in Gallo. Indeed, the plaintiff
never possessed the money it claims it is owed, and,
therefore, it could not use the money, earn income from
the money, or transfer the money to another party.
Given that our Supreme Court held that the plaintiffs
in Gallo did not possess any incidents of ownership
in funds that they maintained in their individual bank
accounts, we are unable to conclude that the plaintiff in
the present case possesses any incidents of ownership
when the plaintiff has no control over the disputed
funds. Consequently, the plaintiff’s interest in the
money is not a vested property interest but, rather, a
contingent or expectant interest. Accordingly, the trial
court properly determined that the plaintiff had not
alleged a property interest sufficient to support a finding
of an unconstitutional taking.
The judgment is reversed as to the first count of the
plaintiff’s complaint seeking a writ of mandamus, and
the case is remanded for further proceedings on that
count only; the judgment is affirmed in all other
respects.
In this opinion the other judges concurred.
1
A responsible party is ‘‘any person who . . . at any time owns, leases,
uses or has an interest in the real property on which an underground storage
tank system is or was located from which there is or has been a release
or suspected release, regardless of when the release or suspected release
occurred, or whether such person owned, leased, used or had an interest
in the real property at the time the release or suspected release occurred,
or whether such person owned, operated, leased or used the underground
storage tank system from which the release or suspected release occurred
. . . .’’ General Statutes § 22a-449a (3) (B).
2
General Statutes § 22a-449a (10) defines ‘‘ ‘[m]id-size station applicant’ ’’
as ‘‘an applicant who owned, operated, leased, used, or had an interest in,
at the time such applicant’s first application was received by the underground
storage tank petroleum clean-up program, six to ninety-nine separate parcels
of real property, within or outside of the state, on which an underground
storage tank system was or had been previously located . . . .’’
3
Article first, § 11, of the Connecticut constitution provides: ‘‘The property
of no person shall be taken for public use, without just compensation there-
for.’’
4
Nevertheless, as noted by the court in Klewin, ‘‘one of the requirements
for a writ of mandamus is a ‘mandatory’ duty imposed by law . . . and
therefore, there is some overlap in [the] determination as to whether [a
statute] creates a mandatory duty both to the applicability of the sovereign
immunity exception in Miller v. Egan, supra, 265 Conn. 314, for actions
against a state officer for conduct in excess of statutory authority, and one
prong of the test for mandamus actions.’’ (Citation omitted.) C. R. Klewin
Northeast, LLC v. Fleming, supra, 284 Conn. 262 n.8. Consequently, in an
action for a writ of mandamus against the state, a plaintiff necessarily would
have to establish that the third exception to sovereign immunity applies in
order to prevail on the merits of a mandamus claim seeking the performance
of a mandatory duty. That is, a plaintiff would have to establish that the
state official has a mandatory statutory duty and that the official is acting
in excess of his or her statutory authority by failing to comply with that duty.
5
The plaintiff also claims that the court erred by applying the current
version of the act in dismissing the first count of its complaint, arguing that
‘‘there is no clear and unequivocal indication that the legislature intended to
retroactively apply the changes to § 22a-449c [and] § 22a-449f.’’ We disagree.
‘‘Whether to apply [an act] retroactively or prospectively depends upon
the intent of the legislature . . . . [There is a presumption of] legislative
intent that statutes affecting substantive rights shall apply prospectively
only. . . . This presumption in favor of prospective applicability, however,
may be rebutted when the legislature clearly and unequivocally expresses
its intent that the legislation shall apply retrospectively.’’ (Internal quotation
marks omitted.) State v. Nowell, 262 Conn. 686, 702, 817 A.2d 76 (2003).
In the present case, the legislature clearly and unequivocally expressed
its intent that the amendments to the act regarding the payment of claims be
given retrospective effect. Section 22a-449r established the reverse auction
system for the payment of claims under the program and specifies that,
‘‘[n]otwithstanding the provisions of sections 22a-449a to 22a-449i, inclusive
. . . payment or reimbursement to mid-size station applicants . . . under
the program shall be in accordance with this subsection . . . . The provi-
sions of this subsection shall create a reverse auction system, and shall
apply to all applications submitted by mid-size or large station applicants
before, on or after June 15, 2012, including . . . applications for which
payment or reimbursement has been ordered by the commissioner but has
not been made. . . .’’ (Emphasis added.) General Statutes § 22a-449r (c).
Accordingly, because § 22a-449r applies to all applications submitted
before, on, or after June 15, 2012, the current version of the act applies to
the plaintiff’s mandamus claims.
6
Because we conclude that the plaintiff’s mandamus claim is not barred
by sovereign immunity, we need not address the plaintiff’s claim that the
court erred by dismissing the mandamus count without allowing jurisdic-
tional discovery regarding whether there are ‘‘available appropriations’’ for
the defendants to reimburse the plaintiff under the act.
7
Although the plaintiff initially averred that the defendants’ failure to pay
any approved but unpaid applications for reimbursement under the act, as
well as any pending applications that should be approved, violated the
takings clause, at oral argument before this court, the plaintiff’s counsel
clarified that the takings claim involved only the failure to pay the approved
2009 application.