Spiotti v. Town of Wolcott , 326 Conn. 190 ( 2017 )

 DOREEN SPIOTTI v. TOWN OF WOLCOTT ET AL.
(SC 19691)
Rogers, C. J., and Palmer, Eveleigh, Espinosa, Robinson, D’Auria and
Vertefeuille, Js.
Syllabus
The plaintiff police officer sought to recover damages from the defendant
town for alleged employment discrimination, claiming that the defendant
had violated the statute (§ 31-51q) pertaining to, inter alia, the termina-
tion of employees for engaging in protective speech and the statute
(§ 46a-60 [a] [4]) pertaining to discriminatory practices against employ-
ees who have previously brought a discrimination action. After the
plaintiff had been terminated, she filed a grievance pursuant to the
collective bargaining agreement between the plaintiff’s union and the
defendant. The state Board of Mediation and Arbitration conducted
hearings with respect to the grievance, and, on the basis of its conclusion
that the plaintiff had made false statements in her discrimination com-
plaint to the police department’s ombudsman and during the depart-
ment’s investigation of that complaint, the board ultimately concluded
that the plaintiff had been terminated for just cause. The plaintiff then
brought the present action, and the defendant filed a motion for summary
judgment, contending, among other things, that the plaintiff’s claims
under §§ 31-51q and 46a-60 (a) (4) were barred by the doctrine of collat-
eral estoppel because the factual underpinning of those claims had been
decided adversely to her by the board. The trial court denied the motion
as to those claims, relying on this court’s decision in Genovese v. Gallo
Wine Merchants, Inc. (226 Conn. 475), which interpreted the statute
(§ 31-51bb) providing that no employee shall be denied the right to
pursue a cause of action arising under a state statute or the state or
federal constitution solely because the employee is covered by a collec-
tive bargaining agreement. The trial court specifically concluded that
an adverse determination in an arbitration proceeding pursuant to a
collective bargaining agreement should not have a preclusive effect with
regard to a subsequent statutory cause of action. On appeal from the
trial court’s denial of the defendant’s motion for summary judgment,
the defendant claimed that Genovese should be overruled because, sub-
sequent to that decision, the legislature enacted the statute (§ 1-2z)
requiring courts to interpret a statute according to its plain and unambig-
uous language without consulting extratextual evidence of its meaning,
and the court in Genovese had relied on the legislative history of § 31-
51bb when interpreting that purportedly clear and unambiguous statute.
The defendant also claimed that the principles of stare decisis did not
prevent this court from overruling Genovese. Held that, even if § 31-
51bb was clear and unambiguous and its legislative history was the sole
basis for this court’s decision in Genovese, the legislature did not intend
that the enactment of § 1-2z would overrule the prior interpretation of
any statutory provision merely because this court previously had failed
to apply the plain meaning rule, and, therefore, ordinary principles of
stare decisis applied to the defendant’s claim; furthermore, this court
declined to depart from the principles of stare decisis and to overrule
its decision in Genovese, as the legislature had not taken action since
that decision to suggest that it disagreed with this court’s conclusion
that § 31-51bb was intended to bar the application of the doctrine of
collateral estoppel to claims of statutory and constitutional violations
brought after a claim involving the same issues had been finally resolved
in grievance procedures or arbitration, and the defendant did not identify
any intervening developments in the law, unconscionable results, or
irreconcilable conflicts or difficulties in this court’s interpretation of
§ 31-51bb that would justify overruling Genovese; moreover, by enacting
§ 31-51bb, the legislature limited an arbitrator’s power to determine
finally and conclusively factual and legal issues that are critical to an
employee’s right to pursue a statutory cause of action, and, to conclude
that the trial court must defer to the board’s findings of fact would be
inconsistent with this legislative intent.
Argued May 2—officially released July 11, 2017
Procedural History
Action to recover damages for, inter alia, alleged
employment discrimination, and for other relief,
brought to the Superior Court in the judicial district of
Waterbury, where the court, Zemetis, J., granted the
defendants’ motion to dismiss the complaint against
the defendant Wolcott Police Department and granted
in part the defendants’ motion to strike; thereafter, the
court, Brazzel-Massaro, J., denied in part the named
defendant’s motion for summary judgment, and the
named defendant appealed. Affirmed.
Michael J. Rose, with whom, on the brief, was
Johanna G. Zelman, for the appellant (named
defendant).
Eric R. Brown, for the appellee (plaintiff).
Opinion
VERTEFEUILLE, J. The primary issue that we must
resolve in this appeal is whether this court should over-
rule its decision in Genovese v. Gallo Wine Merchants,
Inc., 226 Conn. 475, 486, 628 A.2d 946 (1993), holding
that, under General Statutes § 31-51bb,1 a factual deter-
mination made in a final and binding arbitration con-
ducted pursuant to a collective bargaining agreement
does not have preclusive effect in a subsequent action
claiming a violation of the state or federal constitution
or a state statute. The plaintiff, Doreen Spiotti, was
a member of the International Brotherhood of Police
Officers, Local 332 (union), and was employed as a
police officer in the Wolcott Police Department (depart-
ment). After the plaintiff filed a complaint with an
ombudsman for the department alleging that the depart-
ment had engaged in retaliatory conduct against her, the
department conducted an investigation and concluded
that certain statements that the plaintiff had made in
her complaint were false. Thereafter, Neil O’Leary, the
chief of the department, recommended to the town
council of the named defendant, the town of Wolcott,2
that the plaintiff’s employment be terminated. The
defendant terminated the plaintiff, who then filed a
grievance pursuant to the procedures set forth in the
collective bargaining agreement between the defendant
and the union. In accordance with those procedures, the
Connecticut State Board of Mediation and Arbitration
(board of mediation) conducted hearings on the issue
of whether the plaintiff’s employment had been termi-
nated for just cause, and it ultimately concluded that
there was just cause on the basis of its determination
that the plaintiff had made false statements in her com-
plaint to the ombudsman and during the department’s
investigation of that complaint.
Thereafter, the plaintiff brought the present action
alleging, among other things, that her termination was
in retaliation for bringing a previous action against the
defendant alleging sex discrimination in violation of
General Statutes § 46a-60 (a) (4), and for engaging in
protected speech, namely, the complaint to the ombuds-
man, in violation of General Statutes § 31-51q.3 The
defendant filed a motion for summary judgment on the
ground that the plaintiff’s claims were barred by the
doctrine of collateral estoppel because the factual
underpinnings of those claims had been decided
adversely to her by the board of mediation in the arbitra-
tion proceedings. The trial court denied the motion for
summary judgment as to these claims on the ground
that, under this court’s interpretation of § 31-51bb in
Genovese, the doctrine of collateral estoppel does not
bar a statutory cause of action that is brought after the
same issue has been decided in arbitration pursuant to
a collective bargaining agreement. The defendant then
filed this appeal.4 The defendant contends that (1) Geno-
vese should be overruled as a result of the legislature’s
subsequent enactment of General Statutes § 1-2z,5 and
(2) even if Genovese should not be overruled as the
result of § 1-2z, it should be overruled because it was
wrongly decided under then existing law.6 We conclude
that Genovese is still good law and, therefore, affirm
the judgment of the trial court.
Because the underlying facts of this case have little
bearing on the issue that is before us, we need not
discuss them in further detail, but may proceed directly
to our legal analysis. We begin with the standard of
review. As we have indicated, the trial court’s decision
denying the relevant portions of the defendant’s motion
for summary judgment was premised on this court’s
interpretation of § 31-51bb in Genovese v. Gallo Wine
Merchants, Inc., supra, 226 Conn. 486, as barring the
application of the doctrine of collateral estoppel to stat-
utory claims brought subsequent to an arbitration in
which the underlying issues were determined adversely
to the plaintiff. The defendant’s claims that Genovese
should be overruled as the result of the enactment of
§ 1-2z or that it should be overruled because it was
incorrect at the time it was decided involve questions
of statutory interpretation subject to plenary review.
See State v. Salamon, 287 Conn. 509, 529, 949 A.2d 1092(2008) (because whether prior interpretation of statute
should be overruled involves construction of statute,
review is plenary).
To provide context for our resolution of the defen-
dant’s claims, we provide the following overview of this
court’s decision in Genovese. The plaintiff in that case
claimed that the trial court improperly had concluded
that the doctrine of collateral estoppel precluded his
statutory cause of action because an arbitrator pre-
viously had determined the underlying factual issue
adversely to him. Genovese v. Gallo Wine Merchants,
Inc., supra, 226 Conn. 479. After oral argument, this
court in Genovese sua sponte raised the issue of whether
§ 31-51bb had any effect on the judgment of the trial
court and requested supplemental briefs on that issue.
Id., 479–80. The majority in Genovese began its analysis
of this issue by observing that § 31-51bb was intended
to overturn this court’s holding in Kolenberg v. Board
of Education, 206 Conn. 113, 123, 536 A.2d 577, cert.
denied, 487 U.S. 1236, 108 S. Ct. 2903, 101 L. Ed. 2d
935 (1988), that an ‘‘employee’s failure to exhaust the
grievance and arbitration procedures available under a
collective bargaining agreement deprive[s] a trial court
of jurisdiction over a cause of action arising from the
employment relationship.’’ Genovese v. Gallo Wine Mer-
chants, Inc., supra, 480–81. The majority recognized
that it did not follow from this fact that, when an
employee has exhausted grievance procedures and
obtained a final decision in an arbitration proceeding,
the employee may relitigate issues decided by the arbi-
trator in a subsequent action raising a statutory claim.
Id., 482–83. The majority further recognized that, ‘‘ordi-
narily a factual determination made in final and binding
arbitration is entitled to preclusive effect.’’ Id., 483. Nev-
ertheless, it concluded that applying the doctrine of
collateral estoppel to preclude employment related stat-
utory claims that previously had been determined in an
arbitration pursuant to a collective bargaining
agreement would defeat the intent of § 31-51bb, namely,
‘‘to ensure that employees covered by a collective bar-
gaining agreement receive the same opportunity to liti-
gate their statutory claims as those employees who
are not covered by a collective bargaining agreement.’’
Id., 484.
The majority in Genovese further determined that this
interpretation was supported by the legislative history
of § 31-51bb. Id., 484–85. Specifically, the majority relied
on the remarks of Representative Jay B. Levin that the
purpose of the legislation was to codify certain United
States Supreme Court decisions that had ‘‘refused to
give preclusive effect to a prior arbitral decision in a
subsequent court action brought to vindicate an
employee’s statutory rights.’’ Id., 485; see also 31 H.R.
Proc., Pt. 13, 1988 Sess., pp. 4565–66, remarks of Repre-
sentative Jay B. Levin, citing McDonald v. West Branch,
466 U.S. 284, 104 S. Ct. 1799, 80 L. Ed. 2d 302 (1984),
Barrentine v. Arkansas-Best Freight System, Inc., 450
U.S. 728, 101 S. Ct. 1437, 67 L. Ed. 2d 641 (1981), and
Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S. Ct.
1011, 39 L. Ed. 2d 147 (1974). Relying on the reasoning of
these cases, the majority in Genovese further observed
that ‘‘[a]n arbitrator’s frame of reference . . . may be
narrower than is necessary to resolve [a statutory] dis-
pute because the arbitrator’s power is . . . limited by
. . . the collective bargaining agreement and the sub-
mission of the parties’’; Genovese v. Gallo Wine Mer-
chants, Inc., supra, 226 Conn. 486–87; employees are
represented by their union during grievance proce-
dures, the union’s interests may conflict with an
employee’s interests; id., 488; and ‘‘arbitration may be
a less effective forum for the final resolution of statutory
claims’’ than a judicial proceeding because the fact-
finding process in arbitration is less robust than in judi-
cial proceedings. Id., 489. Accordingly, the majority con-
cluded that ‘‘the legislature intended that . . . an
adverse determination [in an arbitration proceeding]
should not have preclusive effect’’ with regard to a
subsequent statutory cause of action. Id., 484.
The majority in Genovese recognized, however, that
§ 31-51bb was ‘‘contrary to the established judicial prin-
ciple that voluntary recourse to arbitration proceedings
allows the prevailing party, after a final arbitral judg-
ment, to raise a defense of collateral estoppel . . . if
the losing party thereafter initiates a judicial cause of
action,’’ and ‘‘also runs counter to the established legis-
lative policy favoring [alternative] methods of dispute
resolution . . . .’’ (Footnote omitted.) Id., 491–92. In
addition, the majority observed that § 31-51bb permits
an employee ‘‘to walk away from an unsatisfactory
grievance or arbitration outcome,’’ while the employer
‘‘is limited to the narrow review afforded by General
Statutes [Rev. to 1993] § 52-418 if it concludes that an
arbitral result was inappropriate.’’ Id., 492. The majority
noted that ‘‘[a] similar disparity in access to our courts,
in the case of compulsory lemon law arbitration proce-
dures, was held unconstitutional in Motor Vehicle Man-
ufacturers Assn. of the United States, Inc. v. O’Neill,
212 Conn. 83, 93–98, 561 A.2d 917 (1989), because it
violated the open courts provision of our state constitu-
tion.’’7 Genovese v. Gallo Wine Merchants, Inc., supra,226 Conn. 492. Accordingly, the majority acknowledged
that ‘‘construing [§ 31-51bb] in accordance with its legis-
lative history creates a range of problems that the legis-
lature may not have fully considered . . . .’’ Id., 490.
In his dissenting opinion in Genovese, Justice Berdon
contended that the majority’s construction of § 31-51bb
was not supported by the plain language of the statute;
id., 494; and violated the rule of statutory interpretation
requiring that ‘‘a statute should not be construed as
altering the [common-law] rule, farther than the words
of the statute import, and should not be construed as
making any innovation upon the common law which
the statute does not fairly express.’’ (Internal quotation
marks omitted.) Id., 495. He further contended that the
majority had ‘‘tipped [the] delicate procedural balance
for resolving grievances between organized labor and
management, by giving the employee an advantage not
envisioned by the clear mandate of the legislation.’’ Id.,
496. Accordingly, Justice Berdon concluded that § 31-
51bb did not permit an employee, after voluntarily sub-
mitting a claim to arbitration, to pursue a subsequent
statutory cause of action involving the same issues.
Id., 494.
With this background in mind, we first address the
defendant’s claim that this court’s decision in Genovese
should be overruled as the result of the subsequent
enactment of § 1-2z in 2003.8 Specifically, the defendant
contends that the ‘‘plain language [of § 31-51bb] only
permits an employee covered by a collective bargaining
agreement to also pursue statutory and constitutional
claims in addition to pursuing her grievance rights,
even if those grievance rights have not yet been
exhausted,’’ and the statute simply does not address
the distinct issue of whether the doctrine of collateral
estoppel applies to a constitutional or statutory claim
involving an issue that previously had been decided
pursuant to contractually required grievance proce-
dures. (Emphasis in original.) Because, according to
the defendant, the meaning of § 31-51bb is clear and
unambiguous, and the sole basis for this court’s inter-
pretation of § 31-51bb in Genovese was the legislative
history of the statute, the defendant contends that Gen-
ovese should be overruled as a result of the enactment
of § 1-2z, which codified the plain meaning rule. See
Kinsey v. Pacific Employers Ins. Co., 277 Conn. 398,
407–408, 891 A.2d 959 (2006) (‘‘[u]nder § 1-2z, we are
precluded from considering extratextual evidence of
the meaning of a statute . . . when the meaning of the
text of that statute is plain and unambiguous, that is,
the meaning that is so strongly indicated or suggested
by the [statutory] language as applied to the facts of
the case . . . that, when the language is read as so
applied, it appears to be the meaning and appears to
preclude any other likely meaning’’ [emphasis in origi-
nal; internal quotation marks omitted]).
We reject this claim. Even if we were to agree with
the defendant that § 31-51bb is clear and unambiguous
with respect to the collateral estoppel issue and that
the sole basis for this court’s decision in Genovese was
the legislative history of the statute, this court pre-
viously has held that the legislature did not intend that
the enactment of § 1-2z would overrule the prior inter-
pretation of any statutory provision merely because we
had failed to apply the plain meaning rule. See Hummel
v. Marten Transport, Ltd., 282 Conn. 477, 501, 923 A.2d
657 (2007) (rejecting claim that legislature ‘‘intended
to overrule every . . . case in which our courts, prior
to the passage of § 1-2z, had interpreted a statute in
a manner inconsistent with the plain meaning rule’’).9
Rather, the ordinary principles of stare decisis apply
to this court’s interpretations of statutory provisions
that predate the enactment of § 1-2z. See id., 494–95
(discussing principles of stare decisis); id., 501–502
(applying principles of stare decisis to statute under
review).
Accordingly, we next address the defendant’s claim
that Genovese was incorrectly decided and that the
principles of stare decisis should not prevent this court
from overruling it. We begin our analysis of this claim
with a review of those principles. ‘‘The doctrine of stare
decisis counsels that a court should not overrule its
earlier decisions unless the most cogent reasons and
inescapable logic require it. . . . Stare decisis is justi-
fied because it allows for predictability in the ordering
of conduct, it promotes the necessary perception that
the law is relatively unchanging, it saves resources and
it promotes judicial efficiency. . . . It is the most
important application of a theory of decisionmaking
consistency in our legal culture and . . . is an obvious
manifestation of the notion that decisionmaking consis-
tency itself has normative value. . . .
‘‘Moreover, [i]n evaluating the force of stare decisis,
our case law dictates that we should be especially wary
of overturning a decision that involves the construction
of a statute. . . . When we construe a statute, we act
not as plenary lawgivers but as surrogates for another
policy maker, [that is] the legislature. In our role as
surrogates, our only responsibility is to determine what
the legislature, within constitutional limits, intended to
do. Sometimes, when we have made such a determina-
tion, the legislature instructs us that we have miscon-
strued its intentions. We are bound by the instructions
so provided. . . . More often, however, the legislature
takes no further action to clarify its intentions. Time
and again, we have characterized the failure of the legis-
lature to take corrective action as manifesting the legis-
lature’s acquiescence in our construction of a statute.
. . . Once an appropriate interval to permit legislative
reconsideration has passed without corrective legisla-
tive action, the inference of legislative acquiescence
places a significant jurisprudential limitation on our
own authority to reconsider the merits of our earlier
decision.’’ (Internal quotation marks omitted.) State v.
Ray, 290 Conn. 602, 614–15, 966 A.2d 148 (2009).
Factors that may justify overruling a prior decision
interpreting a statutory provision include intervening
developments in the law, the potential for unconsciona-
ble results, the potential for irreconcilable conflicts and
difficulty in applying the interpretation. Id., 615; see
also Payne v. Tennessee, 501 U.S. 808, 849, 111 S. Ct.
2597, 115 L. Ed. 2d 720 (1991) (Marshall, J., dissenting)
(justifications for departing from precedent ‘‘include
the advent of subsequent changes or development in
the law that undermine a decision’s rationale . . . the
need to bring [a decision] into agreement with experi-
ence and with facts newly ascertained . . . and a
showing that a particular precedent has become a detri-
ment to coherence and consistency in the law’’ [cita-
tions omitted; internal quotation marks omitted]). In
addition, a departure from precedent may be justified
‘‘when the rule to be discarded may not be reasonably
supposed to have determined the conduct of the liti-
gants . . . .’’ (Internal quotation marks omitted.) State
v. Salamon, supra, 287 Conn. 523.
We conclude that, in the present case, even if we were
to assume that we would reach a different conclusion
if we were addressing the issue as a matter of first
impression, these principles militate against overruling
our decision in Genovese. In the twenty-four years since
Genovese was decided, the legislature has taken no
action that would suggest that it disagreed with our
conclusion that § 31-51bb was intended to bar the appli-
cation of the doctrine of collateral estoppel to claims
of statutory and constitutional violations brought after
a claim involving the same issues had been finally
resolved in grievance procedures or arbitration. This is
so despite the implicit invitation by the majority in
Genovese for the legislature to reconsider § 31-51bb.
See Genovese v. Gallo Wine Merchants, Inc., supra, 226
Conn. 490 (‘‘construing [§ 31-51bb] in accordance with
its legislative history creates a range of problems that
the legislature may not have fully considered’’). Thus,
we presume that the legislature acquiesces with that
interpretation.10 See, e.g., State v. Ray, supra, 290 Conn.
615. Moreover, the defendant has not identified any
intervening developments in the law, unconscionable
results, irreconcilable conflicts or difficulties in
applying our interpretation of § 31-51bb that would jus-
tify overruling Genovese.11 Rather, the defendant has
simply repeated the arguments that the parties made
and that this court rejected in Genovese, which does
not justify a departure from principles of stare decisis.
See id., 613–14 (rejecting defendant’s request to over-
rule prior interpretation of statute when ‘‘all of the
defendant’s arguments . . . expressly were raised and
rejected by this court sixteen years [earlier]’’). Finally,
to the extent that reliance interests are relevant, they
weigh against overruling Genovese because it is possible
that the plaintiff and the union in the present case
may have pursued the plaintiff’s claims in arbitration
differently than they would have if they had believed
that the factual determinations made in those proceed-
ings would have preclusive effect in a subsequent statu-
tory cause of action. We decline, therefore, to overrule
our decision in Genovese.
Finally, we note that the trial court here suggested
repeatedly in its memorandum of decision denying in
part the defendant’s motion for summary judgment that,
although the decision of the board of mediation in the
arbitration proceeding did not have preclusive effect in
the present action, the court was bound by the board’s
findings of fact. That is not the case. Rather, by enacting
§ 31-51bb, the legislature limited ‘‘an arbitrator’s power
to determine finally and conclusively factual and legal
issues that are critical to an employee’s right to pursue
a statutory cause of action in the Superior Court.’’
(Emphasis added.) Genovese v. Gallo Wine Merchants,
Inc., supra, 226 Conn. 487; see also id., 489 (concluding
that arbitration does not have preclusive effect in subse-
quent statutory action in part because arbitration is less
effective forum for resolution of factual claims than
judicial proceeding). To conclude that the trial court
must defer to the arbitrator’s findings of fact would be
inconsistent with this legislative intent. Accordingly,
although the board’s decision may be admitted as evi-
dence and accorded such weight as the trial court
deems appropriate, that court should consider the plain-
tiff’s factual claims de novo. Cf. Alexander v. Gardner-
Denver Co., supra, 415 U.S. 59–60 (‘‘[T]he federal policy
favoring arbitration of labor disputes and the federal
policy against discriminatory employment practices can
best be accommodated by permitting an employee to
pursue fully both his remedy under the grievance-arbi-
tration clause of a collective-bargaining agreement and
his cause of action under [T]itle VII [of the Civil Rights
Act of 1964]. The federal court should consider the
employee’s claim de novo. The arbitral decision may
be admitted as evidence and accorded such weight as
the court deems appropriate.’’); see also id., 60 n.21
(discussing factors to be considered in determining
weight to be given by court to arbitral decision).
The judgment is affirmed.
In this opinion the other justices concurred.
1
General Statutes § 31-51bb provides: ‘‘No employee shall be denied the
right to pursue, in a court of competent jurisdiction, a cause of action arising
under the state or federal Constitution or under a state statute solely because
the employee is covered by a collective bargaining agreement. Nothing in
this section shall be construed to give an employee the right to pursue a
cause of action in a court of competent jurisdiction for breach of any
provision of a collective bargaining agreement or other claims dependent
upon the provisions of a collective bargaining agreement.’’
2
The department was also named as a defendant in the plaintiff’s com-
plaint, but the claims against it were dismissed by agreement of the parties.
For the sake of simplicity, in this opinion, we refer to the town of Wolcott
as the defendant.
3
In addition, the plaintiff alleged that the defendant had discriminated
against her on the basis of her sex in violation of § 46a-60 (a) (1), breached
a settlement agreement resulting from the prior action against the defendant
and wrongfully terminated her in violation of General Statutes § 31-51m.
The trial court granted the defendant’s motion for summary judgment as to
each of these claims on the ground that they did not raise a genuine issue
of material fact and the plaintiff did not establish a prima facie case for
discrimination. The plaintiff has not challenged these rulings in this interlocu-
tory appeal. See footnote 4 of this opinion.
4
The defendant appealed to the Appellate Court, and we transferred the
appeal to this court pursuant to General Statutes § 51-199 (c) and Practice
Book § 65-1. We note that an interlocutory appeal from the denial of a
motion for summary judgment based on the doctrine of collateral estoppel
is a final judgment for purposes of appeal. See Convalescent Center of
Bloomfield, Inc. v. Dept. of Income Maintenance, 208 Conn. 187, 194, 544
A.2d 604 (1988).
5
General Statutes § 1-2z provides: ‘‘The meaning of a statute shall, in the
first instance, be ascertained from 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, extratextual evidence of the
meaning of the statute shall not be considered.’’
6
The defendant further claims that, if we overrule Genovese, we must
conclude as a matter of law that the plaintiff’s statutory claims raise no
genuine issue of material fact because all relevant facts were found adversely
to her in the arbitration proceeding. Because we decline the defendant’s
invitation to overrule Genovese, we need not address this claim.
7
But see Alexander v. Gardner-Denver Co., supra, 415 U.S. 54 (allowing
employee, but not employer, to have statutory discrimination claim consid-
ered both in arbitration and subsequent court proceeding not unfair to
employer because employee ‘‘is not seeking review of the arbitrator’s deci-
sion’’ by bringing claim in court, but ‘‘is asserting a statutory right indepen-
dent of the arbitration process,’’ while ‘‘[a]n employer cannot be the victim
of discriminatory employment practices’’ by employees).
8
Section 1-2z became effective on October 1, 2003. See Public Acts 2003,
No. 03-154, § 1.
9
Although the defendant cited Hummel in its main brief to this court for
the general proposition that a court should not lightly overrule its earlier
decisions, the defendant did not discuss the fact that this court in Hummel
had squarely addressed and rejected the argument, which the defendant
renews in the present case, that given the adoption of § 1-2z this court
should overrule prior decisions involving statutory interpretation in which
we did not apply the plain meaning rule. The plaintiff’s brief also did not
address this holding in Hummel. At oral argument before this court, the
defendant was questioned about the effect of Hummel on its argument
pertaining to § 1-2z. Thereafter, the defendant filed a motion requesting that
the parties be permitted to file supplemental briefs on that issue because
this court had raised it sua sponte. See Blumberg Associates Worldwide,
Inc. v. Brown & Brown of Connecticut, Inc., 311 Conn. 123, 162, 84 A.3d
840 (2014) (reviewing court may raise unpreserved issue sua sponte only
in exceptional circumstances and only if court allows parties to brief issue).
We do not agree with the defendant’s suggestion that this court improperly
raised a new ‘‘issue’’ sua sponte when we asked the defendant about the
of the adoption of § 1-2z. An attorney has an ethical obligation to disclose
to the court controlling precedent that is directly adverse to a claim raised,
and to explain why that precedent should be either distinguished or over-
ruled. See Rules of Professional Conduct 3.3 (a) (2) (‘‘[a] lawyer shall not
knowingly . . . [f]ail to disclose to the tribunal legal authority in the control-
ling jurisdiction known to the lawyer to be directly adverse to the position
of the client and not disclosed by opposing counsel’’). In light of this ethical
obligation, we cannot conclude that the existence of binding precedent that
is directly on point and dispositive of an issue raised by a party is, in and
of itself, an ‘‘issue’’ that the court may not raise sua sponte in the absence
of exceptional circumstances and briefing by the parties. Although parties
are generally entitled to frame the issues without interference from the
courts under our adversarial system of justice; see Blumberg Associates
Worldwide, Inc. v. Brown & Brown of Connecticut, Inc., supra, 146; they
cannot ignore, or expect the courts to ignore, binding legal authority that
directly controls the issues as framed by them. Accordingly, we denied the
defendant’s request for supplemental briefing.
10
We recognize that this court has held that ‘‘the argument in favor of
legislative acquiescence is particularly weak’’ when the legislature has not
demonstrated ‘‘actual acquiescence,’’ i.e., it has amended the statute but
has chosen not to amend the particular provision under review. (Emphasis
omitted.) Stuart v. Stuart, 297 Conn. 26, 47, 996 A.2d 259 (2010); see id.(‘‘[T]he argument in favor of legislative acquiescence is particularly weak
because the legislative acquiescence doctrine requires actual acquiescence
on the part of the legislature. [Thus] [i]n most of our prior cases, we have
employed the doctrine not simply because of legislative inaction, but because
the legislature affirmatively amended the statute subsequent to a judicial
or administrative interpretation, but chose not to amend the specific provi-
sion of the statute at issue. . . . In other words, [l]egislative concurrence
is particularly strong [when] the legislature makes unrelated amendments in
the same statute.’’ [Citation omitted; emphasis in original; internal quotation
marks omitted.]). Upon reflection, we question whether the case for legisla-
tive acquiescence must be ‘‘particularly weak’’ merely because it is not
‘‘particularly strong.’’ (Internal quotation marks omitted.) Id. Even if we
were to assume, however, that the argument for legislative acquiescence is
particularly weak in the present case because the legislature has not
amended § 31-51bb since our decision in Genovese, the defendant has pro-
vided no compelling reason for this court to overrule that case.
11
The defendant does claim that it would be ‘‘outrageous’’ to reinstate
the plaintiff to her position as a police officer when the board of mediation
found that she had made false statements in her complaint to the ombuds-
man and during the investigation of that complaint. This argument, how-
ever, ignores the fact that the very reason for this court’s decision in
Genovese was that ‘‘[t]he [fact-finding process] in arbitration usually is
not equivalent to judicial [fact-finding]. The record of the arbitration
proceedings is not as complete; the usual rules of evidence do not apply;
and rights and procedures common to civil trials, such as discovery,
compulsory process, cross-examination, and testimony under oath, are
often severely limited or unavailable.’’ (Internal quotation marks omitted.)
Genovese v. Gallo Wine Merchants, Inc., supra, 226 Conn. 489. We see
nothing outrageous or unconscionable about allowing the plaintiff to liti-
gate her factual claims de novo in court, including her claim that she did
not make false statements.