State v. Avoletta ( 2022 )

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STATE OF CONNECTICUT v. MATTHEW
AVOLETTA ET AL.
(AC 43851)
Bright, C. J., and Cradle and DiPentima, Js.
Syllabus
The plaintiff state of Connecticut sought a judgment declaring that certain
legislation (2017 Special Acts, No. 17-4), which authorized the defendants
to proceed before the Claims Commissioner on their claim, previously
filed in 2007 and that had been dismissed as untimely and barred on
sovereign immunity grounds, constituted an unconstitutional public
emolument in violation of article first, § 1, of the Connecticut constitu-
tion. In 2007, the defendants, a mother and her two sons, filed a notice
of claim with the Claims Commissioner, seeking to recover damages
from the state for the alleged violation of their federal and state constitu-
tional rights to a free public education for the two sons in a safe school
setting. The Claims Commissioner dismissed the claim for lack of subject
matter jurisdiction on the ground that the claim addressed matters
occurring more than one year prior to the date of the filing and, therefore,
was filed outside of the statutorily (§ 4-148 (a)) prescribed one year
time limit. The defendants sought review from the legislature pursuant
to statute (§ 4-158 (a)), which approved a joint resolution that vacated
the decision of the Claims Commissioner and authorized the defendants
to institute and prosecute an action against the state, and the defendants
subsequently commenced an action thereto. Thereafter, the trial court
granted the state’s motion to dismiss, reasoning that the joint resolution
constituted an unconstitutional public emolument in violation of article
first, § 1, of the Connecticut constitution. On appeal, this court affirmed
the judgment of the trial court, holding that the defendants’ claim was
time barred by the one year statute of limitations set forth in § 4-148
(a), and that the joint resolution had failed to identify any compelling
equitable circumstances or public purpose served by permitting the
defendants to bring an untimely claim against the state. In 2013, the
defendants filed a second claim with the Claims Commissioner, alleging
that they were harmed by the General Assembly’s failure to articulate
a public purpose in the joint resolution and sought to revive their 2007
schools claim and damages and other relief from the state for its subse-
quent negligence in failing to articulate a public purpose in the joint
resolution (legislative negligence claim). The Claims Commissioner
granted the state’s motion to dismiss. The defendants again sought
review from the legislature, which approved the special act that author-
ized the defendants to present their claims to the Claims Commissioner
for injuries alleged to have accrued in 2006, reviving the defendants’
2007 schools claim. The state then instituted the declaratory judgment
action. The defendants filed a counterclaim, alleging that the state’s
action violated their due process rights. The state moved to dismiss the
defendants’ counterclaim on the ground that it was barred by sovereign
immunity. The state filed a motion for summary judgment, claiming that
the special act constituted an unconstitutional public emolument, and
that the defendants were collaterally estopped from arguing that their
claims were timely or that there was a legitimate public purpose for
permitting their untimely claims to proceed. The trial court granted the
state’s motions for summary judgment and to dismiss the defendants’
counterclaim. On the defendants’ appeal to this court, held:
1. The trial court properly granted the state’s motion for summary judgment:
a. The trial court properly determined that the special act constituted a
public emolument in violation of article first, § 1, of the Connecticut
constitution as the defendants’ schools claim was untimely filed outside
of the prescribed one year time limit under § 4-148 (a), the claim could
proceed only pursuant to valid special legislation that expressly identified
a legitimate public purpose, and the special act did not serve a public
purpose because it remedied a procedural default for which the defen-
dants bore responsibility and authorized only the defendants to com-
mence an action against the state for their alleged injuries, providing
the defendants with an exclusive and private benefit, not generally avail-
able to the public; moreover, because the legislative negligence claim
was brought within one year of the alleged injury accruing and, therefore,
was timely filed, the proper statutory mechanisms to authorize the claim
to proceed before the Claims Commissioner were §§ 4-158 (b) and the
statute (§ 4-159 (b)) authorizing the legislature to vacate and remand a
decision of the Claims Commissioner but those statutes were not refer-
enced in the special act; furthermore, the special act exclusively referred
to dates and injuries relevant to the schools claim and failed to reference
the legislature’s failure to articulate a public purpose in the joint resolu-
tion or correctly remand the schools claim to proceed before the Claims
Commissioner, and, therefore, the plain text of the special act failed to
indicate that the legislature intended to authorize the legislative negli-
gence claim to proceed before the Claims Commissioner.
b. The defendants could not prevail on their claim that, in reviewing
and remanding their schools claim pursuant to §§ 4-158, 4-159, and the
applicable statute (§ 4-160) regarding waiver of immunity from liability,
the General Assembly automatically and necessarily waived sovereign
immunity as to their legislative negligence claim: to overcome the pre-
sumption of sovereign immunity, the defendants were required to show
that the legislature, either expressly or by force of a necessary implica-
tion, statutorily waived the state’s sovereign immunity, and, although the
defendants sought legislative authorization to recover for the legislature’s
alleged negligence, the General Assembly’s only action in response
thereto was to enact the special act, which authorized the defendants
to proceed before the Claims Commissioner on the schools claim; more-
over, there was no indication that the legislature intended for the defen-
dants to recover against the legislature for its own alleged negligence
as the special act was silent as to the defendants’ legislative negligence
claim and there was no separate directive that remanded the legislative
negligence claim to the Claims Commissioner or waived immunity to
that claim.
2. The trial court properly dismissed the defendants’ counterclaim on the
ground that it was barred by sovereign immunity: the defendants’ inter-
pretation that, pursuant to § 4-160 (c), the General Assembly waived
sovereign immunity for the defendants’ counterclaim when the legisla-
ture remanded the schools claim to proceed before the Claims Commis-
sioner was incorrect, as the waiver of § 4-160 (c) applied only to actions
for money damages that the General Assembly had authorized against
the state or claims that the General Assembly had remanded to the
Claims Commissioner for further proceedings pursuant to § 4-159 and
does not apply to separate declaratory judgment actions brought by the
state challenging the constitutionality of special legislation; moreover,
without a statutory waiver of sovereign immunity, the defendants could
recover for money damages on their counterclaim only if they presented
their counterclaim before the Claims Commissioner, and, because the
defendants did not do so, their counterclaim could not proceed.
Argued January 11—officially released May 10, 2022
Procedural History
Action for judgment declaring unconstitutional a spe-
cial act of the legislature that permitted the refiling of
a certain claim by the defendants that previously had
been dismissed, and for other relief, brought to the
Superior Court in the judicial district of Hartford, where
the defendants filed a counterclaim; thereafter, the
court, Hon. Robert B. Shapiro, judge trial referee,
granted the plaintiff’s motions for summary judgment
and to dismiss the defendants’ counterclaim and ren-
dered judgment thereon, from which the defendants
appealed to this court. Affirmed.
Deborah G. Stevenson, assigned counsel, for the
appellants (defendants).
Michael K. Skold, assistant attorney general, with
whom, on the brief, were William Tong, attorney gen-
eral, and Clare Kindall, solicitor general, for the appel-
lee (plaintiff).
Opinion
CRADLE, J. This appeal arises out of a long-standing
dispute among the defendants, Joanne Avoletta, Peter
Avoletta, and Matthew Avoletta,1 and the plaintiff, the
state of Connecticut, concerning the state’s alleged fail-
ure to provide Peter Avoletta and Matthew Avoletta
with a free public education in a safe setting. The defen-
dants appeal from the summary judgment rendered by
the trial court in favor of the state and from the judg-
ment of dismissal of their counterclaim. As to the sum-
mary judgment, the defendants claim that the court
improperly concluded that the special act authorizing
their first claim to proceed before the Claims Commis-
sioner (commissioner) constituted an unconstitutional
public emolument in violation of article first, § 1, of the
Connecticut constitution, and the General Assembly did
not automatically waive the state’s sovereign immunity
as to the defendants’ second claim by remanding their
claim to the commissioner. As to the dismissal of the
counterclaim, the defendants claim that the court erred
in determining that their counterclaim was barred by
sovereign immunity. We affirm the judgment of the
trial court.
The record before the court, viewed in the light most
favorable to the defendants as the nonmoving party,
reveals the following relevant facts and procedural his-
tory. On May 2, 2007, the defendants filed a claim with
the commissioner alleging that the state failed to main-
tain the Torrington public schools in a safe and sanitary
condition (2007 claim). Specifically, the defendants
alleged that the middle and high school buildings con-
tained water leaks, bacteria, mold, dampness, and poor
indoor air quality, which caused and exacerbated Peter
Avoletta’s and Matthew Avoletta’s respiratory diseases
and conditions.2 As a result of the poor building condi-
tions, Joanne Avoletta enrolled Peter Avoletta and Mat-
thew Avoletta in private schools and filed a claim with
the commissioner seeking reimbursement from the
state for the tuition and costs of their private education.
Because the defendants’ claim was not timely filed
within the one year statute of limitations set forth in
General Statutes § 4-148 (a),3 the commissioner dis-
missed the claim for lack of subject matter jurisdiction.
The defendants subsequently sought legislative review
of the commissioner’s decision pursuant to § 4-148 (b).4
In response, the General Assembly passed Substitute
House Joint Resolution No. 11-345 (joint resolution),
which vacated the commissioner’s ruling and author-
ized the defendants to file a damages claim against
the state in the Superior Court. Pursuant to the joint
resolution, the defendants commenced an action
against the state on May 14, 2012. See Avoletta v. State,
Docket No. CV-XX-XXXXXXX-S, 2013 WL 2350751 (Conn.
Super. May 6, 2013) (Avoletta I). The state subsequently
filed a motion to dismiss. Id., *1.
The court, Sheridan, J., granted the state’s motion
to dismiss on the ground that the joint resolution was
an unconstitutional public emolument in violation of
article first, § 1, of the Connecticut constitution. Id., *9.
The court found that the defendants’ claim was untimely,
noting that the defendants ‘‘were clearly aware of the
school conditions far more than a year before the May
2, 2007 filing with the . . . commissioner.’’ Id., *7.
Accordingly, the court held that allowing the defendants
‘‘to file suit directly in this matter, when this court
has determined that their action was untimely provides
them a right unavailable to other parties. While the
legislature need not enact a special act when vacating
the . . . commissioner’s dismissal of the matter,
allowing a plaintiff with an untimely claim to circum-
vent § 4-148 (b) without any explanation or public pur-
pose, constitutes a public emolument when the action is
untimely.’’ Id., *9. Thereafter, the defendants appealed
to this court. See Avoletta v. State, 152 Conn. App. 177,
98 A.3d 839, cert. denied, 314 Conn. 944, 102 A.3d 1116(2014) (Avoletta II).
In Avoletta II, this court affirmed the judgment of
the trial court, holding that the defendants’ claim was
time barred by the one year statute of limitations set
forth in § 4-148 (a), and that the joint resolution had
failed to identify any compelling equitable circum-
stances or a public purpose served by permitting the
defendants to bring an untimely claim against the state.
Id., 192–95; see also General Statutes § 4-148 (b). Rely-
ing on Morneau v. State, 150 Conn. App. 237, 260–62,
90 A.3d 1003, cert. denied, 312 Conn. 926, 95 A.3d 522(2014), this court determined that the joint resolution
granted the defendants an exclusive and private benefit
unavailable to the general public. Avoletta II, supra, 152
Conn. App. 192–95. The court proceeded to clarify that
special legislation passed pursuant to § 4-148 (b), which
seeks only to remedy a procedural default, such as
failure to comply with a statute of limitations, will be
upheld only in situations where the ‘‘state itself bears
responsibility’’ for the procedural default. (Emphasis
omitted.) Id., 194–95. Accordingly, this court held that
the joint resolution was an unconstitutional public emolu-
ment. Id., 195.
On August 28, 2013, the defendants filed a second
claim with the commissioner (2013 claim), seeking
relief on two distinct grounds. First, the defendants
sought to revive their 2007 claim for damages stemming
from unsafe conditions at the Torrington public schools
(Torrington schools claim). Second, the defendants
alleged that they were harmed by the legislature’s ‘‘gross
negligence’’ in failing to articulate a public purpose
in the joint resolution and neglecting to appropriately
follow the statutory procedure to authorize such a claim
(legislative negligence claim). The state moved to dis-
miss both claims, arguing that the defendants’ claims
were barred by res judicata, collateral estoppel, and
legislative immunity. The commissioner granted the
state’s motion to dismiss on May 1, 2015.
Following the commissioner’s order, the defendants
again appealed to the General Assembly for legislative
review. On June 13, 2017, the General Assembly passed
No. 17-4 of the 2017 Special Acts (special act), authoriz-
ing the defendants to proceed before the commissioner
‘‘for injuries . . . alleged to have accrued on Septem-
ber 15, 2006 . . . .’’6 The commissioner subsequently
issued a scheduling order requiring that the parties
engage in discovery, file dispositive motions, and partic-
ipate in a hearing on the merits of the defendants’
claims.
On September 15, 2017, the state instituted the pres-
ent action by filing a declaratory judgment action with
the Superior Court, seeking a determination that the
special act constituted an unconstitutional public emol-
ument in violation of article first, § 1, of the Connecticut
constitution.7 The defendants subsequently filed a
motion to dismiss on several grounds,8 each of which
was rejected by the court, Robaina, J., and the motion
was denied. The defendants then filed a motion to strike
the complaint, which the court, Dubay, J., denied.
On May 11, 2018, the state filed a motion for summary
judgment. In its accompanying memorandum of law,
the state claimed that (1) the special act constituted an
unconstitutional public emolument and (2) the defen-
dants were collaterally estopped from arguing that their
claims were timely or that there was a legitimate public
purpose for permitting their untimely claims to pro-
ceed.
The defendants subsequently filed an opposition, in
which they distinguished and clarified the claims they
had brought before the commissioner. With regard to
the Torrington schools claim, the defendants argued
that the state was responsible for their failure to comply
with the one year statute of limitations set forth in § 4-
148 (a). Specifically, the defendants contended that they
had detrimentally relied on promises from state actors
and, in particular, a directive from the attorney general
to the Commissioner of Education to compel the Torrin-
gton school district to abide by state law. The defen-
dants also claimed that the special act served a legiti-
mate public purpose, namely to encourage accountability
in state government through the full adjudication of
cases involving persons who claim to have been injured
by the conduct of state actors. As to the legislative
negligence claim, the defendants clarified that they
were harmed by the legislature’s failure to articulate a
public purpose in the joint resolution, which caused
the dismissal of the 2007 claim, rather than the state’s
alleged failure to maintain the Torrington schools in a
safe condition. They also contended that the legislative
negligence claim was timely filed with the commis-
sioner.
On July 27, 2018, the state submitted a reply brief in
further support of its motion for summary judgment,
wherein it argued, inter alia, that the plain language of
the special act only attempted to revive the Torrington
schools claim and, therefore, did not authorize the legis-
lative negligence claim to proceed before the commis-
sioner. Accordingly, the state contended that the legisla-
tive negligence claim was barred by res judicata, collateral
estoppel, and legislative immunity.
On November 8, 2018, during the pendency of the
state’s motion for summary judgment, the defendants
filed their answer, which included various special defenses
and a counterclaim. The counterclaim alleged, inter
alia, that the state’s conduct in bringing the declaratory
judgment action violated the defendants’ due process
rights under article first, § 1, of the Connecticut consti-
tution.9 The defendants sought relief in the form of (1)
a dismissal of the declaratory judgment action; (2) a
declaration that the state violated the defendants’ due
process rights in bringing the action, that the legislature
prejudiced the defendants by failing to articulate a pub-
lic policy in the joint resolution, and that the 2013 claim
was free to proceed before the commissioner; and (3)
‘‘legal, equitable, compensatory, nominative, actual, and/
or punitive monetary damages, including but not limited
to attorney’s fees, interest, and costs . . . .’’ The state
moved to dismiss the counterclaim on the ground that
it was barred by sovereign immunity.
On October 16, 2019, the court, Hon. Robert B. Sha-
piro, judge trial referee, heard argument on the state’s
motion for summary judgment and on its motion to
dismiss the defendants’ counterclaim. On January 14,
2020, the court granted the state’s motion for summary
judgment. In its memorandum of decision, the court
addressed both the Torrington schools claim and the
legislative negligence claim. Regarding the former, the
court held that the issue of whether the Torrington
schools claim was timely filed was barred by the doc-
trine of collateral estoppel. Because the claim pre-
viously was held untimely, the court clarified that the
claim could only proceed via special legislation passed
pursuant to § 4-148 (b). The court then proceeded to
analyze the constitutionality of the special act in light of
our emoluments clause jurisprudence and determined
that the defendants had failed to demonstrate a genuine
issue of material fact that the special act served a legiti-
mate public purpose. Accordingly, the court concluded
that the special act constituted an unconstitutional pub-
lic emolument.
As to the legislative negligence claim, the court found
that the claim was timely filed in accordance with § 4-
148 (a). The court held, however, that neither the plain
text nor the legislative history of the special act indi-
cated that the General Assembly intended for the defen-
dants to proceed on the legislative negligence claim.
Rather, the special act only authorized the defendants
to proceed before the commissioner on the untimely
Torrington schools claim. Consequently, the court
determined that the legislative negligence claim was
barred by sovereign immunity.
On that same day, the court also granted the state’s
motion to dismiss the defendants’ counterclaim. In its
memorandum of decision, the court held that (1) the
legislature, through the special act, did not statutorily
waive the state’s sovereign immunity with regard to
the counterclaim; (2) the defendants failed to allege a
constitutionally protected interest; and (3) the attorney
general did not exceed his statutory authority in bring-
ing the declaratory judgment action against the defen-
dants. The court concluded, therefore, that the defen-
dants’ counterclaim was barred by sovereign immunity.
This appeal followed.
I
The defendants first claim that the court erred in
rendering summary judgment in favor of the state on
the grounds that (1) the special act authorizing the
Torrington schools claim was an unconstitutional pub-
lic emolument and (2) the legislative negligence claim,
which was not authorized by the plain language of the
special act, was barred by sovereign immunity. With
regard to the Torrington schools claim, the defendants
contend that a genuine issue of material fact exists as to
whether the General Assembly articulated a legitimate
public purpose in the language of the special act. As
to the legislative negligence claim, the defendants argue
that, by reviewing the commissioner’s dismissal of their
claims, and by remanding the Torrington schools claim
to the commissioner through the special act, the Gen-
eral Assembly necessarily waived sovereign immunity
as to the legislative negligence claim. We are not per-
suaded.
We begin by setting forth the appropriate standard
of review and relevant legal principles that guide our
resolution of this appeal. Our review of a trial court’s
decision granting a motion for summary judgment is
well established. ‘‘Practice Book § [17-49] requires that
judgment shall be rendered forthwith if the pleadings,
affidavits and any other proof submitted show that there
is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.
A material fact is a fact that will make a difference in
the result of the case. . . . The facts at issue are those
alleged in the pleadings. . . . The party seeking sum-
mary judgment has the burden of showing the absence
of any genuine issue as to all material facts, which,
under applicable principles of substantive law, entitle
him to a judgment as a matter of law. . . . The party
opposing such a motion must provide an evidentiary
foundation to demonstrate the existence of a genuine
issue of material fact. See Practice Book §§ [17-44 and
17-45]. In deciding a motion for summary judgment, the
trial court must view the evidence in the light most
favorable to the nonmoving party. . . . The test is
whether a party would be entitled to a directed verdict
on the same facts. . . . Our review of the trial court’s
decision to grant a motion for summary judgment is
plenary.’’ (Internal quotation marks omitted.) Pascola-
Milton v. Millard, 203 Conn. App. 172, 179–80, 247 A.3d
652, cert. denied, 336 Conn. 934, 248 A.3d 710 (2021).
‘‘The principle that the state cannot be sued without
its consent, or sovereign immunity, is well established
under our case law.’’ (Internal quotation marks omit-
ted.) DaimlerChrysler Corp. v. Law, 284 Conn. 701,
711, 937 A.2d 675 (2007). ‘‘The doctrine of sovereign
immunity operates as a strong presumption in favor of
the state’s immunity from liability or suit. . . . [T]o
circumvent the strong presumption of sovereign immu-
nity in [an] action for monetary damages, the burden
is on the [claimant] to show that . . . the legislature,
either expressly or by force of a necessary implication,
statutorily waived the state’s sovereign immunity . . . .
In the absence of a statutory waiver of sovereign immu-
nity, the [claimant] may not bring an action against the
state for monetary damages without authorization from
the . . . commissioner to do so. . . .
‘‘When sovereign immunity has not been waived, the
. . . commissioner is authorized by statute to hear
monetary claims against the state and determine
whether the claimant has a cognizable claim. . . . The
. . . commissioner, if he [or she] deems it just and
equitable, may sanction suit against the state on any
claim which, in his [or her] opinion, presents an issue
of law or fact under which the state, were it a private
person, could be liable.’’ (Citation omitted; internal quo-
tation marks omitted.) Avoletta II, supra, 152 Conn.
App. 183–84.
‘‘Section 4-148 (a) sets forth the time frame in which
a claimant must present a claim to the . . . [c]ommis-
sioner. Specifically, that subsection provides that no
claim shall be presented . . . but within one year after
it accrues. Claims for injury to person or damage to
property shall be deemed to accrue on the date when
the damage or injury is sustained or discovered or in
the exercise of reasonable care should have been dis-
covered, provided no claim shall be presented more
than three years from the date of the act or event com-
plained of. . . .
‘‘[Section 4-148 (b)] provides a legislative exception
to the time frame for obtaining a waiver of sovereign
immunity. The General Assembly may, by special act,
authorize a person to present a claim to the . . . [c]om-
missioner after the time limitations set forth in subsec-
tion (a) of this section have expired if it deems such
authorization to be just and equitable and makes an
express finding that such authorization is supported by
compelling equitable circumstances and would serve a
public purpose.’’ (Citation omitted; internal quotation
marks omitted.) Morneau v. State, supra, 150 Conn.
App. 255. ‘‘Although § 4-148 (b) provides that [s]uch
finding shall not be subject to review by the Superior
Court, special acts passed in this manner are subject
to review nonetheless under the public emoluments
clause contained in article first, § 1, of the state constitu-
tion.’’ (Internal quotation marks omitted.) Lagassey v.
State, 268 Conn. 723, 733, 846 A.2d 831 (2004).
‘‘To prevail under article first, § 1, of our constitution,
the state must demonstrate that the sole objective of
the General Assembly is to grant personal gain or advan-
tage to an individual. . . . If, however, an enactment
serves a legitimate public purpose, then it will withstand
a challenge under article first, § 1 . . . . Moreover, we
conduct our review of [the special act] mindful that
legislative enactments carry with them a strong pre-
sumption of constitutionality, and that a party challeng-
ing the constitutionality of a validly enacted statute
bears the heavy burden of proving the statute unconsti-
tutional beyond a reasonable doubt. . . .
‘‘The scope of our review as to whether an enactment
serves a public purpose is limited. [W]hat constitutes
a public purpose is primarily a question for the legisla-
ture, and its determination should not be reversed by
the court unless it is manifestly and palpably incorrect.
. . . In determining whether a special act serves a pub-
lic purpose, a court must uphold it unless there is no
reasonable ground upon which it can be sustained. . . .
Thus, if there be the least possibility that making the
gift will be promotive in any degree of the public welfare
. . . we are bound to uphold it against a constitutional
challenge predicated on article first, § 1, [of the state
constitution]. . . .
‘‘In this regard, although a special act passed under
§ 4-148 (b) will undoubtedly confer a direct benefit upon
a particular claimant, we have found a public purpose
if it remedies an injustice done to that individual for
which the state itself bears responsibility. . . . In such
circumstances, the benefit conferred upon a private
party by the legislature may be viewed as incidental to
the overarching public interest that is served in remedy-
ing an injustice caused by the state. . . .
‘‘By contrast, we have consistently held that legisla-
tion seeking to remedy a procedural default for which
the state is not responsible does not serve a public
purpose and, accordingly, runs afoul of article first, § 1,
of the state constitution. . . . Thus, legislation cannot
survive a constitutional challenge under article first,
§ 1, if it excuses a party’s failure to comply with a
statutory notice requirement simply because the non-
compliance precludes consideration of the merits of
the party’s claim. . . . Similarly, where a special act
has allowed a person named therein to bring a suit
based upon a statutory cause of action that would other-
wise be barred for failure to comply with a time limit
specified in the statute, we have ordinarily been unable
to discern any public purpose sufficient to sustain the
enactment.’’ (Citations omitted; emphasis in original;
footnote omitted; internal quotation marks omitted.)
Kinney v. State, 285 Conn. 700, 709–11, 941 A.2d 907(2008).
A
On appeal, the parties agree that the Torrington
schools claim was not timely filed within the one year
limitation period set forth in § 4-148 (a).10 Thus, the
Torrington schools claim can only proceed pursuant
to valid special legislation that expressly identifies a
legitimate public purpose. See General Statutes § 4-148
(b); Kinney v. State, supra, 285 Conn. 710. The defen-
dants contend that the plain language of the special act
articulates such a purpose and, therefore, authorizes
their claim to proceed before the commissioner. In
response, the state argues that the special act only reme-
dies a procedural default for which the defendants bear
responsibility and, consequently, bestows an exclusive,
private benefit on the defendants in violation of article
first, § 1, of the Connecticut constitution. We agree with
the state.
There is no question that the General Assembly pur-
ported to articulate a legitimate public purpose in the
plain text of the special act. Indeed, the special act
explicitly states that ‘‘there is a public purpose served
by encouraging accountable state government through
the full adjudication of cases involving persons who
claim to have been injured by the conduct of state
actors’’ and ‘‘[t]he General Assembly deems such autho-
rization [to proceed before the commissioner] . . .
just and equitable and finds that such authorization is
supported by compelling equitable circumstances and
would serve a public purpose.’’ Special Act 2017, No.
17-4, § 1. This language, however, does not end our
inquiry. Instead, our Supreme Court has held that ‘‘a
mere declaration within a particular special act that
it serves the public interest is not enough.’’ Kelly v.
University of Connecticut Health Center, 290 Conn.
245, 259–60, 963 A.2d 1 (2009). ‘‘The legislature cannot
by mere fiat or finding, make public a truly private
purpose . . . . Its findings and statements about what
is or is not public cannot be binding upon the court.
. . . Therefore, the fact that the legislature stated that
the special act served a public purpose does not change
the pertinent inquiry for the court.’’ (Citations omitted;
internal quotation marks omitted.) Kinney v. State,
supra, 285 Conn. 712. Rather, we must determine
whether the state conclusively demonstrated that the
‘‘sole objective of the General Assembly [was] to grant
personal gain or advantage to [the defendants].’’ (Inter-
nal quotation marks omitted.) Id., 709.
Our resolution of this claim is guided by our Supreme
Court’s decisions in Kinney v. State, supra, 285 Conn.
700, and Kelly v. University of Connecticut Health Cen-
ter, supra, 290 Conn. 245. In Kinney, the court invali-
dated a special act authorizing a claimant to override
the one year time limitation set forth in § 4-148 (a) as
an unconstitutional public emolument. Kinney v. State,
supra, 713–16. Although the language of the special act
explicitly stated that ‘‘such authorization would serve
a public purpose by not penalizing a person who
exhausts his or her administrative and judicial remedies
before filing a claim against the state with the . . .
commissioner,’’ the court determined that the act’s true
purpose was to provide the claimant with an exclusive
right not generally available to others similarly situated.
Id., 706; see id., 714 (‘‘[e]ven looking beyond the express
statement of the public purpose in [the special act],
however, we are hard pressed to conclude that there
is a legitimate public purpose when the beneficial effect
of the special act applies to no member of the public
other than the plaintiff in this case for whom it grants
a personal privilege’’ (footnote omitted)). Similarly, in
Kelly v. University of Connecticut Health Center,
supra, 260, the court struck down a special act that
attempted to authorize the claimant to proceed before
the commissioner despite the claim being time barred
by § 4-148 (a). The special act provided that permitting
the claim to proceed was ‘‘supported by compelling
equitable circumstances and would serve a public pur-
pose.’’ Id., 248 n.4. Again, the court disagreed and invali-
dated the act on the ground that it ‘‘grant[ed] to the
[claimant] alone a personal right not generally available
to others similarly situated, and serve[d] no public pur-
pose.’’ Id., 260.
Applying the foregoing legal principles to the present
case, we conclude that the special act does not serve
a legitimate public purpose and, therefore, is an uncon-
stitutional public emolument. The special act specifi-
cally authorizes the defendants, and the defendants
alone, to bring their untimely claim before the commis-
sioner. Despite the statutory language that such authori-
zation will ‘‘encourag[e] accountable state govern-
ment,’’ the special act does not permit similarly situated
individuals to bring untimely claims against the state
for money damages. Indeed, the special act’s purported
public purpose is belied by the special act’s title and
plain language, which identifies the defendants by name
and individuates their claim against the state.11 Accord-
ingly, the General Assembly has bestowed the defen-
dants with an exclusive, personal right, not generally
available to the public, to bring suit based on a statutory
cause of action that would otherwise be barred for
failure to comply with a time limit specified in the stat-
ute.
The defendants argue that, even if the special act
confers on them a direct benefit, a valid public purpose
exists because the special act ‘‘remedies an injustice
done . . . for which the state itself bears responsibil-
ity.’’ (Emphasis omitted; internal quotation marks omit-
ted.) Kelly v. University of Connecticut Health Center,
supra, 290 Conn. 258; see also Kinney v. State, supra,285 Conn. 711 (‘‘[b]y contrast, we have consistently held
that legislation seeking to remedy a procedural default
for which the state is not responsible does not serve
a public purpose’’ (emphasis added; internal quotation
marks omitted)). The defendants contend that they
were harmed by the state because, in passing the joint
resolution, the General Assembly negligently failed to
articulate a legitimate public purpose that would allow
their claim to survive an emoluments clause challenge.12
The defendants overlook, however, that any alleged
negligence on the part of the legislature could not have
caused their underlying procedural default in failing to
bring a timely claim. Stated otherwise, the alleged injury
caused by the legislature’s failure to articulate a public
purpose in the joint resolution accrued after the Torrin-
gton schools claim was untimely filed with the commis-
sioner. Accordingly, the General Assembly was not
responsible for the procedural default that the special
act attempts to override.
Moreover, as the trial court aptly determined, there
is no indication that the General Assembly intended to
authorize the defendants to recover on the legislative
negligence claim. Although the defendants sought legis-
lative review of the commissioner’s denial of both the
Torrington schools and legislative negligence claims,
the terms of the special act only permitted the defen-
dants to bring suit for injuries caused by the alleged
harmful school conditions. As previously discussed, the
special act cites § 4-148 (b) as the exclusive statutory
authority authorizing the defendants’ claim to proceed
before the commissioner. Section 4-148 (b) provides the
General Assembly with the ability to authorize claims
barred by the one year limitation period set forth in
§ 4-148 (a). By contrast, General Statutes § 4-158 (b)13
or General Statutes § 4-159 (b)14 authorize the legisla-
ture to review, vacate, and remand decisions of the
commissioner over claims that were timely filed. As
we previously have stated, and as the defendants stipu-
late, the legislative negligence claim was brought within
one year of the alleged injury accruing. Accordingly,
the legislative negligence claim was timely filed for the
purpose of § 4-148 (a), rendering §§ 4-158 (b) and 4-
159 (b) the proper statutory mechanisms by which to
authorize the claim to proceed before the commis-
sioner. The special act, however, makes no reference
to § 4-158 or § 4-159, despite the fact that the defendants
explicitly cited both provisions in their appeal for legis-
lative review from the commissioner’s decision.
In addition, the special act exclusively refers to dates
and injuries relevant to the Torrington schools claim.
By its terms, the special act authorizes the defendants
‘‘pursuant to the provisions of subsection (b) of section
4-148 of the general statutes to present their respective
claims against the state to the . . . [c]ommissioner
. . . .’’ and that ‘‘[t]he General Assembly . . . finds it
just and equitable that the time limitations provided for
in subsection (a) of section 4-148 of the general statutes
be tolled in a case such as this, involving claimants who
initially filed notice of their claims against the state
with the . . . [c]ommissioner on May 2, 2007, for
injuries that are alleged to have accrued on September
15, 2006 . . . .’’ (Emphasis added.) See Special Acts
2017, No. 17-4, § 1 (a). By contrast, the special act makes
no reference to the legislature’s failure to articulate a
public purpose in the joint resolution or correctly
remand the Torrington schools claim to proceed before
the commissioner. ‘‘[I]t is a well settled principle of
statutory construction that the legislature knows how
to convey its intent expressly . . . or to use broader
or limiting terms when it chooses to do so.’’ (Citation
omitted.) Scholastic Book Clubs, Inc. v. Commissioner
of Revenue Services, 304 Conn. 204, 219, 38 A.3d 1183,
cert. denied, 568 U.S. 940, 133 S. Ct. 425, 184 L. Ed. 2d
255 (2012). Accordingly, we find no indication in the
plain text of the special act that the legislature intended
to authorize the legislative negligence claim to proceed
before the commissioner.
B
The defendants next claim that the General Assem-
bly, by accepting the defendants’ legislative appeal and
remanding the Torrington schools claim to the commis-
sioner, necessarily waived its sovereign immunity with
regard to the legislative negligence claim as well.
According to the defendants, the General Assembly was
not required to specifically authorize the legislative neg-
ligence claim through the special act or some other
action because the statutory process by which the Gen-
eral Assembly reviews, vacates, and remands decisions
by the commissioner constitutes, by law, an implicit
waiver of sovereign immunity. We are not persuaded.
‘‘The principles governing statutory waivers of sover-
eign immunity are well established. [A] litigant that
seeks to overcome the presumption of sovereign immu-
nity [pursuant to a statutory waiver] must show that
. . . the legislature, either expressly or by force of a
necessary implication, statutorily waived the state’s
sovereign immunity . . . . In making this determina-
tion, [a court shall be guided by] the well established
principle that statutes in derogation of sovereign immu-
nity should be strictly construed. . . . [When] 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. . . . Furthermore,
because such statutes are in derogation of the common
law, [a]ny statutory waiver of immunity must be nar-
rowly construed . . . and its scope must be confined
strictly to the extent the statute provides. . . . Whether
the legislature has waived the state’s sovereign immu-
nity raises a question of statutory interpretation.’’ (Cita-
tion omitted; internal quotation marks omitted.) Allen
v. Commissioner of Revenue Services, 324 Conn. 292,
299–300, 152 A.3d 488 (2016), cert. denied, U.S. ,
137 S. Ct. 2217, 198 L. Ed. 2d 659 (2017).
This court previously has clarified that, ‘‘in order for
a statute to waive sovereign immunity by force of neces-
sary 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 possi-
ble interpretation of the language. . . . Further,
because ambiguous language in a statute is by definition
susceptible to more than one reasonable interpretation
. . . any ambiguity as to whether the statute waives
sovereign immunity by force of necessary implication
is not an ambiguity but, rather, an answer. . . . Simply
stated, a statute cannot waive the state’s sovereign
immunity from suit by force of necessary implication
when its language is ambiguous because, logically, such
ambiguity forecloses the prospect that an implied
waiver of sovereign immunity is the only possible inter-
pretation of the [statutory] language. . . . Thus, unlike
our typical process of statutory interpretation pursuant
to General Statutes § 1-2z, when the meaning of the
statute cannot be ascertained from its plain and unam-
biguous language, we do not consult extratextual evi-
dence to determine whether the legislature intended to
waive sovereign immunity by force of necessary impli-
cation. . . . Instead, the existence of an ambiguity
‘ends the inquiry,’ and we must conclude that the state’s
immunity from suit has not been implicitly waived by
the statute’s language.’’ (Citations omitted; emphasis
omitted; footnote omitted; internal quotation marks
omitted.) Jezouit v. Malloy, 193 Conn. App. 576, 585–86,
219 A.3d 933 (2019).
The defendants argue that, in reviewing their claims
pursuant to §§ 4-158, 4-159, and General Statutes § 4-
160, the General Assembly automatically and necessar-
ily waived sovereign immunity as to their legislative
negligence claim. In particular, the defendants rely on
language set forth in § 4-160 (c), which provides in
relevant part that ‘‘[i]n each action authorized by . . .
the General Assembly pursuant to section 4-159 or 4-
159a . . . [t]he state waives its immunity from liability
and from suit in each such action and waives all
defenses which might arise from the eleemosynary or
governmental nature of the activity complained of [and]
[t]he rights and liability of the state in each such action
shall be coextensive with and shall equal the rights and
liability of private persons in like circumstances.’’15
The defendants’ claim requires us to review the legis-
lative appeal process for claims against the state for
money damages that have been dismissed or denied
by the commissioner. As an initial matter, when the
commissioner denies or dismisses a claim under § 4-
158 (a) (1), the claimant may seek legislative review
of the commissioner’s decision under § 4-158 (b). On
reviewing the claim, the General Assembly may either:
(1) confirm the commissioner’s decision; see General
Statutes § 4-159 (b) (1) (A); (2) vacate the decision and
either order payment or authorize the claimant to sue
the state; see General Statutes § 4-159 (b) (1) (B); or
(3) remand the claim to the commissioner for such further
proceedings as the General Assembly may direct. See
General Statutes § 4-159 (b) (4).
When the General Assembly authorizes a claim to
proceed or remands it for further proceedings before
the commissioner, § 4-160 (c) provides in relevant part
that ‘‘the claimant shall allege such authorization and
the date on which it was granted, except that evidence
of such authorization shall not be admissible in such
action as evidence of the state’s liability. The state
waives its immunity from liability and from suit in each
such action and waives all defenses which might arise
from the eleemosynary or governmental nature of the
activity complained of. The rights and liability of the
state in each such action shall be coextensive with and
shall equal the rights and liability of private persons in
like circumstances.’’ (Emphasis added.)
Reading this statutory framework as a whole, we
conclude that the General Assembly did not implicitly
waive sovereign immunity with regard to the legislative
negligence claim. First, it is clear from the plain lan-
guage of § 4-159 that any action taken by the legislature
in response to a request to review a claim cannot arise
automatically by operation of law. Rather, each subsec-
tion requires the legislature to take some positive action
indicating that it either (1) confirms the commissioner’s
decision; (2) vacates the decision and either orders
payment or authorizes the claimant to sue; or (3)
remands the claim to the commissioner for further pro-
ceedings as the General Assembly may direct. Second,
§ 4-160 (c) indicates that the claimant carries the burden
of ‘‘alleg[ing]’’ that the legislature authorized the claim-
ant to proceed before the commissioner and the date
on which such authorization was granted. Moreover,
§ 4-160 (c) provides in relevant part that ‘‘evidence of
such authorization shall not be admissible in such action
as evidence of the state’s liability.’’ (Emphasis added.)
Read together, this language implies that the claimant
must identify some action taken by the legislature that
demonstrates ‘‘evidence of such authorization’’ for the
claim to proceed before the commissioner. Allowing a
claim to proceed where the legislature was silent would
contradict the plain language of the statute.
In the present case, the special act was the only action
taken by the General Assembly on review from the
commissioner regarding either the Torrington schools
claim or the legislative negligence claim. As we pre-
viously have stated, the special act was silent as to the
legislative negligence claim, as well as the statutory
provisions that provide the authority to remand the
legislative negligence claim to the commissioner. There
was no separate directive remanding the alleged legisla-
tive negligence claim to the commissioner or waiving
immunity as to that claim. Permitting the defendants
to proceed without any sort of indication from the legis-
lature would contradict our law’s strong presumption
of sovereign immunity. See Morneau v. State, supra,150 Conn. App. 253; id., 252–53 (‘‘[w]here there is any
doubt about its meaning or intent, we should give it
the effect that makes the least rather than the most
change in sovereign immunity . . . [n]othing can be
taken by implication against the state’’ (citations omit-
ted; internal quotation marks omitted)). This principle
applies with particular force in the present circum-
stances, where the defendants seek legislative authori-
zation to recover for negligence allegedly committed
by the legislature undertaking a core legislative func-
tion. In the absence of any indication that the legislature
intended for the defendants to recover against itself for
its own alleged negligence, the defendants’ claim must
fail. Accordingly, the state was entitled to judgment
as a matter of law and the court correctly rendered
summary judgment.
II
The defendants’ second claim is that the court
improperly dismissed their counterclaim on the ground
that it was barred by sovereign immunity. Specifically,
the defendants claim that the General Assembly, pursu-
ant to §§ 4-158, 4-159, and 4-160, impliedly waived sover-
eign immunity as to the defendants’ counterclaim by
reviewing the defendants’ claims and remanding the
Torrington schools claim to proceed before the commis-
sioner. We disagree.
As a preliminary matter, we set forth the appropriate
standard of review and relevant legal principles that
guide our disposition of this claim. ‘‘A motion to dismiss
. . . properly attacks the jurisdiction of the court,
essentially asserting that the plaintiff cannot as a matter
of law and fact state a cause of action that should be
heard by the court. . . . A motion to dismiss tests, inter
alia, whether, on the face of the record, the court is
without jurisdiction. . . . [O]ur review of the trial
court’s ultimate legal conclusion and resulting [decision
to] grant . . . the motion to dismiss will be de novo.
. . . [T]he doctrine of sovereign immunity implicates
subject matter jurisdiction and is therefore a basis for
granting a motion to dismiss.’’ (Citation omitted; inter-
nal quotation marks omitted.) Columbia Air Services,
Inc. v. Dept. of Transportation, 293 Conn. 342, 346–47,
977 A.2d 636 (2009).
‘‘Sovereign immunity relates to a court’s subject mat-
ter jurisdiction over a case, and therefore presents a
question of law over which we exercise de novo review.
. . . In so doing, we must decide whether [the trial
court’s] conclusions are legally and logically correct
and find support in the facts that appear in the record.
. . . [T]he sovereign immunity enjoyed by the state is
not absolute. There are [three] exceptions: (1) when the
legislature, either expressly or by force of a necessary
implication, statutorily 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 allegation of wrongful conduct to pro-
mote an illegal purpose in excess of the officer’s statu-
tory authority. . . . For a claim [for money damages]
made pursuant to the first exception, this court has
recognized the well established principle 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.’’ (Citations omitted; internal quotation marks
omitted.) Id., 349–50.
On appeal, the defendants again claim that the Gen-
eral Assembly impliedly waived sovereign immunity,
pursuant to §§ 4-158, 4-159, and 4-160, by reviewing
and remanding the Torrington schools claim to proceed
before the commissioner.16 In particular, the defendants
rely on language set forth in § 4-160 (c), which provides
in relevant part, ‘‘[i]n each action authorized by . . .
the General Assembly pursuant to section 4-159 or 4-
159a . . . the state waives its immunity from liability
and from suit in each such action and waives all
defenses which might arise from the eleemosynary or
governmental nature of the activity complained of.
. . .’’ The defendants interpret this language to mean
that the General Assembly, by remanding the Torring-
ton schools claim to proceed before the commissioner,
waived sovereign immunity for the defendants’ counter-
claim in this subsequent declaratory judgment action.
We find this reading to be misguided.
Looking closely at the statutory language, § 4-160
(c)’s waiver applies only to actions authorized by the
General Assembly pursuant to §§ 4-159 and 4-159a.
Specifically, the waiver, by its terms, applies to suits
for money damages that the General Assembly has
authorized against the state; see General Statutes § 4-
159 (b) (1) (B); or claims that the General Assembly has
remanded to the commissioner for further proceedings.
See General Statutes § 4-159 (b) (4). Section 4-160 (c)
does not apply to separate declaratory judgment actions
brought by the state challenging the constitutionality
of special legislation. Accordingly, in order to recover
money damages on their counterclaim against the state
for its alleged due process violation in bringing the
declaratory judgment action, the defendants must iden-
tify a separate statutory waiver of sovereign immunity
permitting them to do so. See Columbia Air Services,
Inc. v. Dept. of Transportation, supra, 293 Conn. 346–
50. As we previously have stated, the only legislative
action waiving sovereign immunity in the present case
was the special act authorizing the defendants to pro-
ceed before the commissioner on the Torrington
schools claim. In the absence of a statutory waiver of
sovereign immunity, the only other avenue by which
the defendants may recover for money damages on their
counterclaim is to present their counterclaim before
the commissioner. See Chief Information Officer v.
Computers Plus Center, Inc., 310 Conn. 60, 96, 74 A.3d
1242 (2013) (‘‘the defendant’s failure to present its coun-
terclaims for damages to the [c]laims [c]ommissioner
and to obtain legislative permission to sue the depart-
ment pursuant to § 4-160 prior to bringing its counter-
claims deprives the trial court of subject matter jurisdic-
tion over those counterclaims’’); see also Avoletta II,
supra, 152 Conn. App. 183. Because the defendants have
not done so, there is no jurisdictional basis on which
their counterclaim can proceed. Accordingly, we con-
clude that the defendants’ counterclaim is barred by
sovereign immunity.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Hereinafter, we refer to Joanne Avoletta, Peter Avoletta, and Mathew
Avoletta, collectively, as the defendants, and individually by name where
appropriate. Joanne Avoletta is the mother of Peter Avoletta and Mat-
thew Avoletta.
2
The defendants alleged that Peter Avoletta ‘‘suffers from irreversible lung
disease’’ and Matthew Avoletta ‘‘suffers from chronic allergies and asthma.’’
3
General Statutes § 4-148 (a) provides: ‘‘Except as provided in subsection
(b) of this section and section 4-165b, no claim shall be presented under
this chapter but within one year after it accrues. Claims for injury to person
or damage to property shall be deemed to accrue on the date when the
damage or injury is sustained or discovered or in the exercise of reasonable
care should have been discovered, provided no claim shall be presented
more than three years from the date of the act or event complained of.’’
4
General Statutes § 4-148 (b) provides: ‘‘The General Assembly may, by
special act, authorize a person to present a claim to the Office of the Claims
Commissioner after the time limitations set forth in subsection (a) of this
section have expired if it deems such authorization to be just and equitable
and makes an express finding that such authorization is supported by com-
pelling equitable circumstances and would serve a public purpose. Such
finding shall not be subject to review by the Superior Court.’’
5
Substitute House Joint Resolution No. 11-34, § 2, provides in relevant
part that ‘‘the decision of the . . . [c]ommissioner . . . ordering the dis-
missal of the claims against the state in excess of seven thousand five
hundred dollars of [the defendants], is vacated and the [defendants] are
authorized to institute and prosecute to final judgment an action against
the state to recover damages as compensation for injury to person or damage
to property, or both, allegedly suffered by the claimants as set forth in
said claims.’’
6
Number 17-4 of the 2017 Special Acts provides: ‘‘(a) Notwithstanding
the failure to file a proper notice of a claim against the state with the
clerk of the Office of the Claims Commissioner, within the time limitations
specified by subsection (a) of section 4-148 of the general statutes, Joanne
Avoletta, Peter Avoletta, and Matthew Avoletta are authorized pursuant to
the provisions of subsection (b) of section 4-148 of the general statutes to
present their respective claims against the state to the Claims Commissioner.
The General Assembly finds that there is a public purpose served by encour-
aging accountable state government through the full adjudication of cases
involving persons who claim to have been injured by the conduct of state
actors. The General Assembly further finds it just and equitable that the
time limitations provided for in subsection (a) of section 4-148 of the general
statutes be tolled in a case such as this, involving claimants who initially
filed notice of their claims against the state with the Claims Commissioner
on May 2, 2007, for injuries that are alleged to have accrued on September 15,
2006, which allegations, if viewed in a light most favorable to the claimants,
provide notice to the state of their claims within the statute of limitations
for injuries to their person. The General Assembly deems such authorization
to be just and equitable and finds that such authorization is supported by
compelling equitable circumstances and would serve a public purpose. Such
claims shall be presented to the Claims Commissioner not later than one
year after the effective date of this section.
‘‘(b) The state shall be barred from setting up the failure to comply with
the provisions of sections 4-147 and 4-148 of the general statutes, from
denying that notice of the claims was properly and timely given pursuant
to sections 4-147 and 4-148 of the general statutes and from setting up
the fact that the claims had previously been considered by the Claims
Commissioner, by the General Assembly or in a judicial proceeding as
defenses to such claims.’’
7
The state also filed a motion to stay the proceedings before the commis-
sioner pending the court’s resolution of the constitutionality of the spe-
cial act.
8
In the defendants’ memorandum in support of their motion to dismiss,
they alleged, inter alia, that (1) the court lacked personal jurisdiction over
the defendants due to the state’s insufficient service of process; (2) the
court lacked subject matter jurisdiction because the commissioner had not
yet issued a final judgment and was not joined as a party to the declaratory
judgment action; (3) the state lacked standing to bring the declaratory
judgment action; (4) the claim was not ripe for adjudication; (5) the state’s
claim was judicially estopped; and (6) the court’s exercise of jurisdiction
over the claim violated separation of power principles.
9
Specifically, the defendants alleged, inter alia, that the state’s filing of
a declaratory judgment action (1) violated their rights by alleging that their
claims were not timely filed; (2) violated the plain language of the special
act; and (3) impermissibly interfered with the defendants’ right to a fair
hearing and their ability to recover under the special act.
10
As we previously have stated, the court held that the issue of whether
the Torrington schools claim was timely filed pursuant to § 4-148 (a) was
barred by the doctrine of collateral estoppel. The defendants have not chal-
lenged that conclusion in their brief or at oral argument before this court.
Rather, they stipulate in their brief that the Torrington schools claim was
untimely filed.
11
The special act is entitled ‘‘An Act Concerning The Claims Against The
State of Joanne Avoletta, Peter Avoletta and Matthew Avoletta’’ and provides
in relevant part that, ‘‘[n]otwithstanding the failure to file a proper notice
of a claim against the state with the clerk of the Office of the Claims
Commissioner, within the time limitations specified by subsection (a) of
section 4-148 of the general statutes, Joanne Avoletta, Peter Avoletta, and
Matthew Avoletta are authorized pursuant to the provisions of subsection
(b) of section 4-148 of the general statutes to present their respective claims
against the state to the Claims Commissioner.’’ (Emphasis added.) The
special act does not authorize any other claimants, or class of claimants,
to override the one year statute of limitation set forth in § 4-148 (a) for
injuries stemming from the conditions of the Torrington schools or, more
generally, from the ‘‘conduct of state actors.’’
12
At summary judgment, the defendants argued that both the executive
branch and the legislative branch were responsible for their failure to timely
bring the Torrington schools claim. Regarding the executive branch, the
defendants alleged that they relied on (1) the attorney general’s acknowledg-
ment that the state had a duty to provide a safe school setting for the
children; and (2) his directive to the Commissioner of Education to take
appropriate corrective action, and that such reliance unjustly prevented
them from bringing a timely claim against the state. As to the legislative
branch, the defendants claimed that they were harmed by the General Assem-
bly’s failure to articulate a legitimate public policy in the joint resolution.
In its memorandum of decision on the state’s motion for summary judgment,
the court addressed only the alleged harm caused by the executive branch,
holding that any assurances that the defendants may have received from
the attorney general did not foreclose the timely filing of the Torrington
schools claim and, accordingly, did not amount to the kind of procedural
default for which the state could be held responsible. On appeal, the defen-
dants abandon the argument that the executive branch caused their untimely
filing. Instead, the defendants focus solely on the legislature’s purported
failure to articulate a public purpose in the joint resolution.
13
General Statutes § 4-158 (b) provides: ‘‘Any person who has filed a claim
for more than fifty thousand dollars may request the General Assembly to
review a decision of the Claims Commissioner (1) ordering the denial or
dismissal of the claim pursuant to subdivision (1) of subsection (a) of this
section, including denying or dismissing a claim that requests permission
to sue the state, or (2) ordering immediate payment of a just claim in an
amount not exceeding thirty-five thousand dollars pursuant to subdivision
(2) of subsection (a) of this section. A request for review shall be in writing
and filed with the Office of the Claims Commissioner not later than twenty
days after the date the person requesting such review receives a copy of
the decision. The filing of a request for review shall automatically stay the
decision of the Claims Commissioner.’’
Section 4-158 (b) was amended by the legislature in 2021. See Public Acts
2021, No. 21-91, § 4. That amendment has no bearing on this appeal. In the
interest of simplicity, we refer to the current revision of the statute.
14
General Statutes § 4-159 (b) provides: ‘‘The General Assembly shall: (1)
With respect to a decision of the Claims Commissioner ordering the denial
or dismissal of a claim pursuant to subdivision (1) of subsection (a) of
section 4-158: (A) Confirm the decision; or (B) Vacate the decision and, in
lieu thereof, (i) order the payment of the claim in a specified amount, or
(ii) authorize the claimant to sue the state; (2) With respect to a decision
of the Claims Commissioner ordering the immediate payment of a just
claim in an amount not exceeding thirty-five thousand dollars pursuant to
subdivision (2) of subsection (a) of section 4-158: (A) Confirm the decision;
(B) Modify the decision by ordering that a different amount be paid; or (C)
Vacate the decision and, in lieu thereof, (i) order no payment be made, or
(ii) authorize the claimant to sue the state; (3) With respect to a decision
of the Claims Commissioner recommending payment of a just claim in an
amount exceeding thirty-five thousand dollars pursuant to subdivision (3)
of subsection (a) of section 4-158: (A) Accept the recommendation and
order payment of the specified amount; (B) Modify the recommendation by
ordering that a different amount be paid; or (C) Reject the recommendation
and, in lieu thereof, (i) order no payment be made, or (ii) authorize the
claimant to sue the state; or (4) With respect to a decision of the . . .
[c]ommissioner pursuant to subdivision (1), (2) or (3) of subsection (a) of
section 4-158, remand the claim to the Office of the Claims Commissioner
for such further proceedings as the General Assembly may direct.’’
Section 4-159 (b) was amended by the legislature in 2021. See Public Acts
2021, No. 21-91. That amendment has no bearing on this appeal. In the
interest of simplicity, we refer to the current revision of the statute.
15
The legislature has amended § 4-160 (c) since the events underlying this
appeal. See Public Acts 2021, No. 21-91, § 6. That amendment has no bearing
on the merits of this appeal. In the interest of simplicity, we refer to the
current revision of the statute.
16
The defendants’ counterclaim also sought declaratory and injunctive
relief on the ground that the attorney general acted in excess of his statutory
authority and violated the defendants’ due process right to have their claims
heard by filing the present declaratory judgment action. The court dismissed
those claims as barred by sovereign immunity. The defendants have not
raised those arguments on appeal or included them as grounds for relief in
their brief to this court. Accordingly, we decline to review them. See Morri-
sey-Manter v. Saint Francis Hospital & Medical Center, 166 Conn. App.
510, 526–27, 142 A.3d 363, cert. denied, 323 Conn. 924, 149 A.3d 982 (2016).