Jezouit v. Malloy

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LAWRENCE S. JEZOUIT v. DANNEL P.
MALLOY ET AL.
(AC 40839)
DiPentima, C. J., and Moll and Beach, Js.
Syllabus
The plaintiff brought this action against the defendant state officials, officers
and employees, claiming that telephone calls he had made to them were
unlawfully recorded because they failed to obtain his consent or to
provide him with notice in violation of statute (§ 52-570d [a]) before
recording the calls. The plaintiff sought, inter alia, to permanently enjoin
the defendants and all state officials and employees from unlawfully
recording telephonic communications in the conduct of state business.
The trial court granted the defendants’ motion to dismiss and rendered
judgment thereon, concluding that § 52-570d did not waive sovereign
immunity by force of necessary implication, and that the plaintiff’s claim
for injunctive relief failed because he did not make substantial allega-
tions of wrongful conduct on the part of the defendants to promote an
illegal purpose in excess of their statutory authority. On the plaintiff’s
appeal to this court, held:
1. The trial court properly granted the defendants’ motion to dismiss the
plaintiff’s complaint on the ground that the defendants were immune
from suit pursuant to the doctrine of sovereign immunity:
a. The plaintiff could not prevail on his claim that because § 52-570d
authorizes an aggrieved person to bring an action in the Superior Court,
as does similar language in the statute (§ 17a-550) that provides remedies
for violations of the patients’ bill of rights, the only possible interpreta-
tion of § 52-570d is that it impliedly waives sovereign immunity: unlike
§ 17a-550, which makes no distinction between patients of private and
public mental health facilities, § 52-570d does not implicate a compelling
public policy reason to provide those who have their telephonic commu-
nications recorded in an illegal fashion by the government the same
civil remedy as those who are recorded illegally by private parties and,
thus, no language in § 52-570d required an interpretation that it impliedly
waives sovereign immunity; moreover, related statutes that evidenced
the remedial nature of § 17a-550 illuminated the breadth of the legislative
concern for the fair treatment of mental patients, and a statute’s instruc-
tion as to what an aggrieved person must file and where to file it did not
compel the conclusion that such a statute waives sovereign immunity.
b. There was no merit to the plaintiff’s assertion that because § 52-570d
(b) exempts from liability certain state officials, it waives sovereign
immunity from suit by necessary implication for those state officials not
so designated, such as the defendants: the implicit waiver of sovereign
immunity from liability in § 52-570d (a) and (b) did not implicitly waive
sovereign immunity from suit, and the exemption of certain state officials
in § 52-570d (b) from the provisions of § 52-570d (a) did not require the
conclusion that the legislature intended to waive sovereign immunity
from suit with respect to those claims, as a statute logically can be
interpreted as waiving sovereign immunity from liability with respect
to certain state officials but not waiving sovereign immunity from suit
with respect to claims against those officials; moreover, where the state
waives sovereign immunity from liability but not its immunity from suit,
an aggrieved person in such circumstances is not without recourse and
may seek recovery against the state by filing a claim with the Claims
Commissioner pursuant to statute (§ 4-141 et seq.).
2. The plaintiff could not prevail on his claim that because he sought declara-
tory and injunctive relief on the basis of a substantial allegation of
wrongful conduct to promote an illegal purpose in excess of an officer’s
statutory authority, the trial court improperly dismissed his complaint
by failing to apply the exception to sovereign immunity for claims of
declaratory and injunctive relief, as the plaintiff failed to alleged a cogni-
zable claim under that exception to sovereign immunity; the trial court
properly determined that the complaint did not set forth substantial
allegations of wrongful conduct by the defendants to promote an illegal
purpose in excess of their statutory authority, as the plaintiff’s interpreta-
tion of § 52-570d would impose civil liability on state officials for conduct
as innocuous as having an answering system that records voice mails,
and the plaintiff failed to allege that the defendants recorded his tele-
phonic communications to promote an illegal purpose and did not allege
any purpose behind the recording of his telephonic communications in
a manner proscribed by § 52-570d (a).
Argued May 22—officially released October 15, 2019
Procedural History
Action, inter alia, to enjoin the defendants from
recording certain telephonic communications in the
course of their official business, and for other relief,
brought to the Superior Court in the judicial district of
Hartford, where the court, Elgo, J., granted the defen-
dants’ motion to dismiss; thereafter, the court granted
the plaintiff’s motion for reargument and vacated in
part its order granting of the defendants’ motion to
dismiss; subsequently, the court granted the defendants’
motion for reconsideration and rendered judgment dis-
missing the action, from which the plaintiff appealed
to this court. Affirmed.
David V. DeRosa, with whom, on the brief, was Law-
rence S. Jezouit, for the appellant (plaintiff).
Maura Murphy Osborne, assistant attorney general,
with whom, on the brief was George Jepsen, former
attorney general, for the appellees (defendants).
Opinion
DiPENTIMA, C. J. The plaintiff, Lawrence S. Jezouit,
appeals from the judgment of the trial court dismissing
his complaint on the basis of sovereign immunity. The
plaintiff argues that the court improperly dismissed his
complaint because (1) he brought his claim pursuant to
General Statutes § 52-570d, which he contends waives
sovereign immunity by force of necessary implication,
and (2) he seeks declaratory and injunctive relief in
accordance with a recognized exception to sovereign
immunity. We disagree and, thus, affirm the judgment
of the trial court.
The following facts and procedural history are rele-
vant to this appeal. In his complaint, the plaintiff alleged
that, on May 26, 2010, he sought to record a telephone
conversation that he had with an agent of the Internal
Revenue Service (IRS). When the plaintiff disclosed to
the IRS agent that he was recording their conversation,
the agent informed him ‘‘that she would cease further
discussion and would not continue so long as the call
was being recorded.’’ The plaintiff alleged that he
believed that it was ‘‘unfair’’ that he could not record
the conversation in light of the fact that it was the
‘‘reciprocal practice’’ of the IRS, as well as many other
government agencies and business entities, to record
such conversations for their own purposes.
After researching the law, the plaintiff concluded that
the state’s routine practice of recording telephone com-
munications was illegal because state officials failed to
obtain consent, or to provide notification to the
recorded party, in accordance with the provisions of
§ 52-570d (a).1 The plaintiff alleged that he initially had
lobbied the state legislature to amend § 52-570d in order
to address the fact that the statute had been ‘‘outpaced’’
by certain technological developments and the ubiqui-
tous use of modern telephone answering systems. When
his lobbying efforts failed, the plaintiff claimed that he
‘‘reluctantly’’ commenced this action in his own interest
and in the interest of the public.
As to the gravamen of his complaint, the plaintiff
alleged that he was recorded illegally when, on various
dates in March, 2015, he called the defendants (with
one exception) and left messages on their respective
automated answering systems.2 The plaintiff alleged
that these recordings were obtained illegally because
the defendants failed to obtain consent or to provide
notice in a manner required by § 52-570d (a). In his
prayer for relief, the plaintiff sought ‘‘[f]indings that
[his] legal rights were invaded by the unlawful recording
of his . . . telephonic communications, which caused
legal injuries,’’ nominal damages, costs and reasonable
attorney’s fees pursuant to § 52-570d (c), and ‘‘injunc-
tive relief, preliminary and permanent, enjoining the
defendants and the state of Connecticut, its officials,
officers, agencies, departments and employees from
illegally recording telephonic communications when-
ever performing any duties or conducting any business
on behalf of the state, and in particular from utilizing
any device, instruments or equipment, personal or oth-
erwise, to record telephonic communications in viola-
tion of . . . § 52-570d and in particular § 52-570d (a)
(2).’’
On June 18, 2015, the defendants filed a motion to
dismiss the plaintiff’s complaint in its entirety. In their
motion, the defendants argued that the plaintiff’s claims
were barred by the doctrine of sovereign immunity. In
a memorandum of decision, dated August 6, 2015, the
trial court granted the defendants’ motion on the
grounds that § 52-570d did not waive sovereign immu-
nity and that the plaintiff’s claim for injunctive relief
did not satisfy either of the two exceptions for seeking
such relief against the state. On August 27, 2015, the
plaintiff filed a motion to reargue, which was granted by
the court on September 16, 2015. Following reargument,
the court, in an order dated July 5, 2017, vacated its
judgment of dismissal, concluding that § 52-570d (c),
when read in conjunction with § 52-570d (b), waives
sovereign immunity by force of necessary implication.3
In particular, the court noted that because § 52-570d
(b) delineates specific state actors who are not subject
to liability under § 52-570d (a), the law implies that
‘‘other state and private actors who are not so specified
are therefore subject to liability under the statute.’’ On
July 24, 2017, the defendants filed a motion for reconsid-
eration of the court’s July 5, 2017 order. On September
7, 2017, the court granted the defendants’ motion for
reconsideration and issued a memorandum of decision,
vacating its July 5, 2017 order and dismissing the plain-
tiff’s action on the basis of sovereign immunity.
In its September 7, 2017 memorandum of decision,
the court noted that, in accordance with our Supreme
Court’s holding in Envirotest Systems Corp. v. Com-
missioner of Motor Vehicles, 293 Conn. 382, 978 A.2d
49 (2009) (Envirotest), in order for a statute to waive
the state’s sovereign immunity from suit by force of
necessary implication, the waiver must be the ‘‘only
possible interpretation of the [statutory] language.’’
(Emphasis in original.) Id., 390. Applying this holding
to § 52-570d, the court concluded that the statute was
susceptible to more than one interpretation as to
whether it constituted a waiver of sovereign immunity,
and, thus, did not operate to waive sovereign immunity
by force of necessary implication.4 From this decision,
the plaintiff appeals.5
I
The plaintiff contends that the court improperly dis-
missed his complaint because § 52-570d waives sover-
eign immunity by force of necessary implication. We
consider this claim to be twofold.6 First, the plaintiff
argues that § 52-570d (c), which authorizes any person
aggrieved by a violation of § 52-570d (a) to bring a civil
action for damages, is effectively the same as General
Statutes § 17a-550, which our Supreme Court has inter-
preted as waiving sovereign immunity by force of neces-
sary implication. Second, he contends that because
§ 52-570d (b) provides that the provisions of § 52-570d
(a) do not apply to specific state actors who record
telephonic communications in the lawful performance
of their official duties, or when such communications
are of an emergency nature, the legislature intended
the state to be subject to suit to the same extent as
private persons for any unlawful recordings that are
not exempted by the provisions of the statute. We do
not agree.
We begin our analysis by setting forth the legal princi-
ples that guide our review. ‘‘[T]he doctrine of sovereign
immunity implicates subject matter jurisdiction and is
therefore a basis for granting a motion to dismiss. . . .
A determination regarding a trial court’s subject matter
jurisdiction is a question of law. When . . . the trial
court draws conclusions of law, our review is plenary
and we must decide whether its conclusions are legally
and logically correct and find support in the facts that
appear in the record.’’ (Internal quotation marks omit-
ted.) Macellaio v. Newington Police Dept., 142 Conn.
App. 177, 179–80, 64 A.3d 348 (2013).
‘‘The principle that the state cannot be sued without
its consent, or sovereign immunity, is well established
under our case law. . . . [T]he practical and logical
basis of the doctrine [of sovereign immunity] is today
recognized to rest . . . on the hazard that the subjec-
tion of the state and federal governments to private
litigation might constitute a serious interference with
the performance of their functions and with their con-
trol over their respective instrumentalities, funds, and
property. . . . Not only have we recognized the state’s
immunity as an entity, but [w]e have also recognized
that because the state can act only through its officers
and agents, a suit against a state officer concerning a
matter in which the officer represents the state is, in
effect, against the state. . . . Exceptions to this doc-
trine are few and narrowly construed under our juris-
prudence.’’ (Citations omitted; internal quotation marks
omitted.) Markley v. Dept. of Public Utility Control,
301 Conn. 56, 65, 23 A.3d 668 (2011).
‘‘The doctrine of sovereign immunity is a rule of com-
mon law that operates as a strong presumption in favor
of the state’s immunity from liability or suit. See C. R.
Klewin [Northeast, LLC] v. Fleming, [284 Conn. 250,
258, 932 A.2d 1053 (2007)] (The principle that the state
cannot be sued without its consent . . . is well estab-
lished under our case law. . . . It has deep roots in
this state and our legal system in general, finding its
origin in ancient common law. . . . [T]his court has
recognized the well established principle that statutes
in derogation of sovereign immunity 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. . . . In an action against the state in which
damages are sought, a plaintiff seeking to circumvent
the doctrine of sovereign immunity must show that
. . . the legislature, either expressly or by force of a
necessary implication, statutorily waived the state’s
sovereign immunity . . . .’’ (Citation omitted; empha-
sis omitted; internal quotation marks omitted.) Envir-
otest Systems Corp. v. Commissioner of Motor Vehicles,
supra, 293 Conn. 387–88. The parties agree that § 52-
570d does not expressly waive sovereign immunity;
therefore, the only issue as to this claim is whether the
statute does so by necessary implication.
In Envirotest, our Supreme Court explained that in
order for a statute to waive sovereign immunity by force
of necessary implication, ‘‘it is not sufficient that the
claimed waiver reasonably may be implied from the
statutory language. It must, by logical necessity, be the
only possible interpretation of the language.’’ (Empha-
sis altered.) Id., 389–90. Further, because ambiguous
language in a statute is by definition ‘‘susceptible to
more than one reasonable interpretation’’; see Carmel
Hollow Associates Ltd. v. Bethlehem, 269 Conn. 120,
134 n.19, 848 A.2d 451 (2004); any ambiguity as to
whether the statute waives sovereign immunity by force
of necessary implication ‘‘is not an ambiguity but,
rather, an answer.’’ Envirotest Systems Corp. v. Com-
missioner of Motor Vehicles, supra, 293 Conn. 390. Sim-
ply 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
interpretation of the [statutory] language.’’ (Emphasis
in original.) Id. Thus, unlike our typical process of statu-
tory interpretation pursuant to General Statutes § 1-2z,7
when the meaning of the statute cannot be ascertained
from its plain and unambiguous language, we do not
consult extratextual evidence to determine whether the
legislature intended to waive sovereign immunity by
force of necessary implication. See State v. Lombardo
Bros. Mason Contractors, Inc., 307 Conn. 412, 439, 54
A.3d 1005 (2012). 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. Envirotest Systems
Corp. v. Commissioner of Motor Vehicles, supra, 391.
A
The plaintiff first argues that the court improperly
concluded that § 52-570d did not waive sovereign immu-
nity by force of necessary implication because such a
determination is inconsistent with Mahoney v. Lensink,
213 Conn. 548, 562, 569 A.2d 518 (1990), in which our
Supreme Court held that similar language found in the
statutory predecessor to § 17a-5508 waived sovereign
immunity by force of necessary implication.9 Addition-
ally, the plaintiff contends that when a statute provides
‘‘what to file’’ and ‘‘where to file it,’’ the statute waives
sovereign immunity by force of necessary implication.
We disagree.
In Mahoney, our Supreme Court addressed, inter alia,
whether General Statutes § 17-206k (now § 17a-550)
waives sovereign immunity by force of necessary impli-
cation. The statute in particular provides a ‘‘remedy for
those persons aggrieved by violations of any specific
provisions of the patients’ bill of rights, [General Stat-
utes §§ 17a-540 to 17a-549],’’ by permitting such persons
to petition the Superior Court for appropriate relief or
to bring a civil action for damages. Mahoney v. Lensink,
supra, 213 Conn. 555; General Statutes § 17a-550.
Because the statute contains no express waiver of sov-
ereign immunity, the court looked to the various statu-
tory provisions that comprise the patients’ bill of rights
in order to determine whether the legislature intended
to waive sovereign immunity implicitly. In so doing,
the court found that several of the statutes made no
distinction between private and public facilities and
that, in order for ‘‘the purposes sought to be served by
the enactment of the patients’ bill of rights,’’ it was
necessarily implied ‘‘that the legislature intended to
provide a direct cause of action against the state and
thus to waive its sovereign immunity.’’ Mahoney v. Len-
sink, supra, 558.
We conclude that the plaintiff’s argument ignores
several distinguishing factors between the statute at
issue in Mahoney and § 52-570d. In particular, Mahoney
acknowledged that § 17a-550, part of the patients’ bill
of rights, was a remedial statute and ‘‘its provisions
should be liberally construed in favor of the class sought
to be benefited.’’ Id., 556. The remedial nature of the
statute was evidenced by several related statutes that
illuminated ‘‘the breadth of the legislative concern for
the fair treatment of mental patients.’’ Id. Because the
patients’ bill of rights act made no distinction between
patients of private and public mental health facilities,
the Mahoney court concluded that it was ‘‘a necessary
implication of the purposes sought to be served by the
enactment of the patients’ bill of rights’’ that the legisla-
ture had waived sovereign immunity as to any claim
pursuant to § 17a-550. (Emphasis added; footnote omit-
ted.) Id., 557. Thus, it was a fundamental aspect of the
entire legislative act that counseled our Supreme Court
to conclude that sovereign immunity had been waived
by force of necessary implication. Here, there is no
language from which we can conclude that in order
for the purposes of § 52-570d to be served, we must
interpret the statute as an implied waiver of sovereign
immunity. Specifically, unlike the statute in Mahoney,
the text of this statute does not implicate a compelling
public policy reason for providing persons who have
their telephonic communications recorded in an illegal
fashion by the government the same civil remedy as
those persons who are recorded illegally by private
parties. Thus, we are unpersuaded that simply because
the language in § 52-570d (c) is similar to § 17a-550,
we should conclude that the statute waives sovereign
immunity by force of necessary implication.
The plaintiff further contends that, following our
Supreme Court’s decision in Mahoney, the language of
§ 17a-550 became the ‘‘paradigm’’ for an implied waiver
of sovereign immunity. Specifically, he submits that
when a statute ‘‘instructs an ‘aggrieved person’ what to
file . . . and where to file,’’ our courts have held such
language to be an implied waiver of the state’s sovereign
immunity from suit.10 In support of this proposition,
the plaintiff asks us to compare our Supreme Court’s
holding in Martinez v. Dept. of Public Safety, 263 Conn.
74, 83, 818 A.2d 758 (2003), with the legislature’s
response to that case in its enactment of No. 03-97 of
the 2003 Public Acts.
In Martinez, the plaintiff, a former state police
trooper, brought suit against the state pursuant to Gen-
eral Statutes § 53-39a, ‘‘seeking reimbursement for
expenses and costs he had incurred in defending him-
self against criminal charges that arose out of his alleged
conduct during the course of duty.’’ Id., 75. After exam-
ining the language of the statute, our Supreme Court
concluded that the plaintiff’s claims were barred by the
doctrine of sovereign immunity because § 53-39a did
not include an express or implied waiver of the state’s
immunity from suit. Id., 88. Shortly after the court’s
decision was published, the legislature amended the
statute to include language that authorized aggrieved
persons to enforce the provisions of § 53-39a by way
of a private cause of action filed in the Superior Court.
See General Statutes (Rev. to 2003) § 53-39a, as
amended by Public Acts 2003, No. 03-97, § 2 (P.A. 03-
97, § 2).11 Our Supreme Court has recognized that the
2003 amendment to § 53-39a superseded its decision in
Martinez. See Vejseli v. Pasha, 282 Conn. 561, 570 n.8,
923 A.2d 688 (2007).
Although the plaintiff is correct that the legislature
amended § 53-39a by adding a provision that authorizes
an aggrieved person to bring an action in the Superior
Court, we disagree that the interplay between Martinez
and the 2003 amendment to § 53-39a compels the con-
clusion that whenever a statute instructs an aggrieved
person ‘‘what to file’’ and ‘‘where to file,’’ it constitutes
a waiver of sovereign immunity. For one, we note that,
unlike § 52-570d (c), the provision in § 53-39a specifies
that an action to enforce the statute can be brought
against the government. See General Statutes (Rev. to
2003) § 53-39a, as amended by P.A. 03-97, § 2. Moreover,
‘‘[t]he general purpose of [§ 53-39a] is to permit police
officers to recoup [from their employing governmental
unit] the necessary expenses that they have incurred
in defending themselves against unwarranted criminal
charges arising out of their conduct in the course of
their employment.’’ Cislo v. Shelton, 240 Conn. 590, 598,
692 A.2d 1255 (1997). Thus, it is only municipalities and
the state that are subject to suit under this particular
indemnity statute, and a provision authorizing suit
against the employing governmental unit would by logi-
cal necessity constitute an implied waiver of sovereign
immunity from suit. Such is not the case with § 52-570d
(a), which applies generally to any person who uses
‘‘any instrument, device or equipment to record an oral
private telephonic communication.’’ See State v. Lom-
bardo Bros. Mason Contractors, Inc., supra, 307 Conn.
439–40 (‘‘statutory language generally purporting to
affect rights and liabilities of all persons will not be
deemed to apply to the state in the absence of an express
statutory reference to the state’’ [emphasis in original]).
Accordingly, we do not agree with the plaintiff that
simply because § 52-570d authorizes an aggrieved per-
son to bring an action in the Superior Court, the only
possible interpretation of the statute is an implied
waiver of sovereign immunity.
B
The plaintiff next argues that § 52-570d waives sover-
eign immunity from suit by force of necessary implica-
tion because subsection (b) of the statute exempts cer-
tain state officials who record telephonic
communications in the lawful performance of their
duties, or in cases of emergency, from the provisions
of subsection (a). The plaintiff argues that if we were
to conclude that the statute does not waive sovereign
immunity from suit, the exemptions provided in subsec-
tion (b) vis-à-vis state officials would be rendered super-
fluous. Put another way, because the statute exempts
from liability certain state officials, by necessary impli-
cation, the statute waives sovereign immunity from suit
for those state officials not so designated, such as the
defendants in this action. We conclude that this argu-
ment is without merit.
In claiming that the statute implicitly waives sover-
eign immunity from suit because it exempts certain
state actors from the provisions of subsection (a), the
plaintiff conflates a waiver of the state’s sovereign
immunity from liability with a waiver of its sovereign
immunity from suit. See Rivers v. New Britain, 288
Conn. 1, 11, 950 A.2d 1247 (2008) (‘‘[s]overeign immu-
nity is comprised of two concepts, immunity from liabil-
ity and immunity from suit’’ [internal quotation marks
omitted]). There is a ‘‘conceptual distinction between
sovereign immunity from suit and sovereign immunity
from liability. Legislative waiver of a state’s suit immu-
nity merely establishes a remedy by which a claimant
may enforce a valid claim against the state and subjects
the state to the jurisdiction of the court. By waiving its
immunity from liability, however, the state concedes
responsibility for wrongs attributable to it and accepts
liability in favor of a claimant.’’ (Internal quotation
marks omitted.) Vejseli v. Pasha, supra, 282 Conn. 570n.8. In such circumstances where the state waives sov-
ereign immunity from liability but not its immunity from
suit, an aggrieved person is not without recourse, as
he ‘‘may seek recovery against the state by filing a
claim with the claims commissioner in accordance with
General Statutes § 4-141 et seq.’’ Rivers v. New Britain,
supra, 12. Accordingly, we can logically interpret a stat-
ute as waiving sovereign immunity from liability with
respect to certain state officials but not waiving sover-
eign immunity from suit with respect to claims against
those officials.
Applying this principle to § 52-570d, we read § 52-
570d (a) and (b) as an implicit waiver of the state’s
sovereign immunity from liability but not as an implicit
waiver of the state’s sovereign immunity from suit. Sim-
ply stated, the fact that the statute exempts certain state
officials from the provisions of § 52-570d (a) does not
require us to conclude that the legislature intended to
waive sovereign immunity from suit with respect to
those claims. Our conclusion is bolstered by our review
of similar statutes, which reveals that when the legisla-
ture seeks to waive the state’s sovereign immunity from
suit in the context of a statutory cause of action, it
normally does so by express waiver. See General Stat-
utes § 52-570b (g) (‘‘[a] civil action may be brought
under this section against the state or any political
subdivision thereof and the defense of governmental
immunity shall not be available in any such action’’);
General Statutes § 52-556 (‘‘[a]ny person injured in per-
son or property through the negligence of any state
official or employee when operating a motor vehicle
owned and insured by the state against personal injuries
or property damage shall have a right of action against
the state to recover damages for such injury’’). ‘‘Where
a statute, with reference to one subject contains a given
provision, the omission of such provision from a similar
statute concerning a related subject . . . is significant
to show that a different intention existed. . . . That
tenet of statutory construction is well grounded
because [t]he General Assembly is always presumed to
know all the existing statutes and the effect that its
action or non-action will have upon any one of them.’’
(Internal quotation marks omitted.) Hatt v. Burlington
Coat Factory, 263 Conn. 279, 310, 819 A.2d 260 (2003).
In light of the foregoing, we do not agree with the
plaintiff that the only possible interpretation of § 52-
570d is a waiver of sovereign immunity by force of
necessary implication. Thus, we conclude that the stat-
ute does not waive the state’s sovereign immunity from
suit, and the trial court properly dismissed the plaintiff’s
complaint on this basis.
II
In his second claim on appeal, the plaintiff argues
that the court improperly dismissed his complaint by
failing to apply the recognized exception to sovereign
immunity for claims of declaratory and injunctive relief.
Specifically, the plaintiff argues that he has sought
declaratory and injunctive relief on the basis of a sub-
stantial allegation of wrongful conduct to promote an
illegal purpose in excess of an officer’s statutory author-
ity.12 We disagree and, thus, conclude that the plaintiff
has not alleged a cognizable claim under this exception.
As stated previously in this opinion, ‘‘[t]he sovereign
immunity enjoyed by the state is not absolute. There are
[three] exceptions . . . .’’ (Citations omitted; internal
quotation marks omitted.) Columbia Air Services, Inc.
v. Dept. of Transportation, 293 Conn. 342, 349, 977 A.2d
636 (2009). The first exception, as discussed in part I
of this opinion, occurs ‘‘when the legislature, either
expressly or by force of a necessary implication, statu-
torily waives the state’s sovereign immunity’’; the sec-
ond exception occurs ‘‘when an action seeks declara-
tory 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 the third exception
occurs ‘‘when an action seeks declaratory or injunctive
relief on the basis of a substantial allegation of wrongful
conduct to promote an illegal purpose in excess of the
officer’s statutory authority.’’ (Internal quotation marks
omitted.) Id. ‘‘For a claim under the third exception [to
the doctrine of sovereign immunity], the plaintiffs must
do more than allege that the defendants’ conduct was
in excess of their statutory authority; they also must
allege or otherwise establish facts that reasonably sup-
port those allegations.’’ (Internal quotation marks omit-
ted.) Markley v. Dept. of Public Utility Control, supra,
301 Conn. 72; see also Antinerella v. Rioux, 229 Conn.
479, 486, 642 A.2d 699 (1994) (allegation that defendant
terminated plaintiff’s employment ‘‘to further his own
financial gain through [an illegal] fee splitting agree-
ment with various deputy sheriffs’’ sufficient for pur-
poses of exception to sovereign immunity), overruled
in part on other grounds by Miller v. Egan, 265 Conn.
301, 325, 828 A.2d 549 (2003).
In its August 6, 2015 memorandum of decision, the
trial court concluded that ‘‘[t]o the extent that the plain-
tiff seeks declaratory or injunctive relief, he has failed
to assert claims that amount to a substantial allegation
of wrongful conduct to promote an illegal purpose in
excess of the officer’s statutory authority. Quite simply,
the defendants have voice mail systems which the plain-
tiff knowingly utilized to leave voice mail messages.
Such conduct could not be more benign.’’13 (Internal
quotation marks omitted) We agree.
As we noted previously in this opinion, the plaintiff
alleged that all but one of the defendants illegally
recorded him in violation of § 52-570d (a), when he
called them and left messages on their respective auto-
mated answering systems. See footnote 2 of this opin-
ion. The plaintiff maintains that because those
recordings were created without the defendants’
obtaining consent from all parties, or providing proper
notification, they constituted illegal recordings under
§ 52-570d (a). Here, the plaintiff’s interpretation would
impose civil liability on state officials for conduct as
innocuous as having an answering system that records
voice mails. We agree with the trial court that the plain-
tiff’s complaint does not set forth ‘‘substantial allega-
tions’’ of wrongful conduct to promote an illegal pur-
pose in excess of the state officers’ statutory authority.
The plaintiff alleged that the defendants violated § 52-
570d (a) in recording his telephonic communications.
Specifically, the plaintiff’s complaint asserts that he
initiated telephone communication with the various
defendants, with the exception of Governor Malloy, and
that, as a result, ‘‘a ringtone was activated and operated
until the state’s instrument, device or equipment, in
sequence, activated a verbal notification, also known
as a greeting, a tone, and then made a recording of
the [p]laintiff’s communication through to [p]laintiff’s
termination of the communication.’’ Accordingly, we
conclude that these allegations are not ‘‘substantial’’
allegations of wrongful conduct sufficient to satisfy the
third exception to the doctrine of sovereign immunity.
See Braham v. Newbould, 160 Conn. App. 294, 313, 124
A.3d 977 (2015) (inmate’s claim that he was charged
twice for his eyeglass prescription in violation of § 18-
85a-3 of Regulations of Connecticut State Agencies was
not substantial allegation of wrongful conduct).
The third exception to sovereign immunity also
requires an allegation that the state officer’s wrongful
conduct promoted an illegal purpose in excess of the
officer’s statutory authority. See Columbia Air Ser-
vices, Inc. v. Dept. of Transportation, supra, 293 Conn.
349. In the present case, the plaintiff also has failed
to allege that the defendants recorded his telephonic
communications to promote an illegal purpose. Indeed,
the plaintiff has not alleged any purpose behind the
defendants’ recording of his telephonic communica-
tions in a manner proscribed by § 52-570d (a). Because
a plaintiff seeking to bring a claim pursuant to this
exception must allege facts that, if proven, would show
that a state official acted in excess of his or her authority
to promote an illegal purpose, the trial court properly
granted the defendants’ motion to dismiss on the basis
of sovereign immunity. See Carter v. Watson, 181 Conn.
App. 637, 642, 187 A.3d 478 (2018) (‘‘[i]n the absence
of a proper factual basis in the complaint to support
the applicability of these exceptions, the granting of a
motion to dismiss on sovereign immunity grounds is
proper’’ [internal quotation marks omitted]). For these
reasons, we conclude that the plaintiff failed to allege a
cognizable claim under the third exception to sovereign
immunity and, therefore, this claim must fail.
The judgment is affirmed.
In this opinion the other judges concurred.
1
General Statutes § 52-570d (a) provides: ‘‘No person shall use any instru-
ment, device or equipment to record an oral private telephonic communica-
tion unless the use of such instrument, device or equipment (1) is preceded
by consent of all parties to the communication and such prior consent either
is obtained in writing or is part of, and obtained at the start of, the recording,
or (2) is preceded by verbal notification which is recorded at the beginning
and is part of the communication by the recording party, or (3) is accompa-
nied by an automatic tone warning device which automatically produces a
distinct signal that is repeated at intervals of approximately fifteen seconds
during the communication while such instrument, device or equipment is
in use.’’
2
The defendants, all of whom are named in their official capacities with
the state of Connecticut, are: Governor Dannel P. Malloy, who was replaced
as a defendant, upon a motion granted by this court, by his successor,
Governor Edward M. Lamont, Jr.; Colleen M. Murphy, general counsel for
the Freedom of Information Commission; Martin M. Looney, President Pro
Tempore, Joint Committee on Legislative Management; Adam Joseph, press
aide to Senator Martin M. Looney; Joe Aresimowicz, Speaker of the House
of Representatives; Andrea Furlow, legislative assistant; Leonard A. Fasano,
Senate Minority Leader, Joint Committee on Legislative Management;
Themis Klarides, Minority Leader of the House of Representatives, Joint
Committee on Legislative Management; Edwin Vargas, state representative;
Francesco P. Sandillo, legislative assistant to Representative Edwin Vargas;
John A. Mockler, technology manager, Office of Information Technology
Services, Office of Legislative Management; William F. O’Shea, attorney,
Legislative Commissioner’s Office; Judge Patrick L. Carroll III, Chief Court
Administrator; Sharon Wilson, executive secretary, Office of the Chief Court
Administrator; Martin R. Libbin, director, Legal Services; Leann R. Power,
public records administrator; and Sara E. Cheeseman, public records
archivist.
The plaintiff did not allege that he called Governor Malloy; rather, he
alleged that Governor Malloy ‘‘is the supreme executive authority of the
state of Connecticut pursuant to the powers vested in him by section five
of article fourth of the constitution of the state of Connecticut. Section
twelve of the same article requires that, as such, he ‘shall take care that
the laws be faithfully executed.’ Governor Malloy has failed to take care
that his agents comply with General Statutes § 52-570d.’’
3
General Statutes § 52-570d (b) provides: ‘‘The provisions of subsection
(a) of this section shall not apply to:
‘‘(1) Any federal, state or local criminal law enforcement official who in
the lawful performance of his duties records telephonic communications;
‘‘(2) Any officer, employee or agent of a public or private safety agency,
as defined in section 28-25, who in the lawful performance of his duties
records telephonic communications of an emergency nature;
‘‘(3) Any person who, as the recipient of a telephonic communication
which conveys threats of extortion, bodily harm or other unlawful requests
or demands, records such telephonic communication;
‘‘(4) Any person who, as the recipient of a telephonic communication
which occurs repeatedly or at an extremely inconvenient hour, records such
telephonic communication;
‘‘(5) Any officer, employee or agent of any communication common carrier
who in the lawful performance of his duties records telephonic communica-
tions or provides facilities to an investigative officer or criminal law enforce-
ment official authorized pursuant to chapter 959a to intercept a wire commu-
nication;
‘‘(6) Any officer, employee or agent of a Federal Communications Commis-
sion licensed broadcast station who records a telephonic communication
solely for broadcast over the air;
‘‘(7) Any officer, employee or agent of the United States Secret Service who
records telephonic communications which concern the safety and security
of the President of the United States, members of his immediate family or
the White House and its grounds; and
‘‘(8) Any officer, employee or agent of a Federal Communications Commis-
sion broadcast licensee who records a telephonic communication as part of
a broadcast network or cooperative programming effort solely for broadcast
over the air by a licensed broadcast station.’’
General Statutes § 52-570d (c) provides: ‘‘Any person aggrieved by a viola-
tion of subsection (a) of this section may bring a civil action in the Superior
Court to recover damages, together with costs and a reasonable attor-
ney’s fee.’’
4
In its third decision, from which the plaintiff appeals, the court stated
that its July 5, 2017 order, which vacated the August 6, 2015 decision dismiss-
ing the plaintiff’s complaint, was limited to the issue of whether the statute
waives sovereign immunity by force of necessary implication. Accordingly,
the court stated that it would not revisit the issue of whether the plaintiff
had sought declaratory and injunctive relief in accordance with one of the
exceptions to sovereign immunity, as that portion of the August 6, 2015
decision was not subject to reconsideration.
5
The defendants argue that we can affirm the decision of the trial court
on the alternative basis that the plaintiff lacks standing to bring this action.
Because we agree with the trial court that the action is barred by the doctrine
of sovereign immunity, we need not address the standing issue in this appeal.
See Mendillo v. Tinley, Renehan & Dost, LLP, 329 Conn. 515, 517, 187
A.3d 1154 (2018) (affirming judgment of trial court and declining to reach
alternative jurisdictional basis for dismissal).
6
We note that the plaintiff also argues that the court failed to correctly
apply General Statutes § 1-2z when it concluded that § 52-570d did not
waive sovereign immunity by force of necessary implication as to the facts
presented in this case. Specifically, he contends that the court improperly
concluded that, on the basis of the allegations of the complaint, the plaintiff
implicitly consented to being recorded and, irrespective of whether the
statute waived sovereign immunity by force of necessary implication in
other contexts, it did not waive sovereign immunity under this particular
set of facts. The plaintiff argues that such a conclusion is contrary to our
process of statutory interpretation and the plain and unambiguous language
of § 52-570d (a), which he contends sets forth the exclusive means of
obtaining consent or providing notice with respect to the recording of a
telephonic communication. Given that our review of a trial court’s interpreta-
tion of a statute is plenary; see Aurora Loan Services, LLC v. Condron, 181
Conn. App. 248, 277, 186 A.3d 708 (2018); and our conclusion that the statute
does not waive sovereign immunity in any factual context is dispositive
with respect to the plaintiff’s first claim on appeal; see part I B of this
opinion; we see no reason to address the issue of whether the court correctly
applied § 1-2z when it concluded that the statute did not waive sovereign
immunity under this particular set of facts.
7
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.’’
8
General Statutes § 17a-550 provides: ‘‘Any person aggrieved by a violation
of sections 17a-540 to 17a-549, inclusive, may petition the superior court
within whose jurisdiction the person is or resides for appropriate relief,
including temporary and permanent injunctions, or may bring a civil action
for damages.’’
9
As a threshold matter, we note that Mahoney was decided before Envir-
otest and the enactment of § 1-2z. Nonetheless, our Supreme Court in Envir-
otest interpreted Mahoney as establishing, and correctly applying, the rule
that an implied waiver of sovereign immunity must be the ‘‘only possible
interpretation of the [statutory] language,’’ without consultation of extratex-
tual sources. (Emphasis in original.) See Envirotest Systems Corp. v. Com-
missioner of Motor Vehicles, supra, 293 Conn. 390; but see id., 401–402 (Katz,
J., concurring) (In Mahoney, ‘‘the issue was whether [General Statutes] § 17-
206k [now § 17a-550], in providing a statutory remedy for those persons
aggrieved by violations of any specific provisions of the patients’ bill of rights
. . . constitutes an abrogation of sovereign immunity so as to authorize a
voluntary patient in a state mental facility to sue the state or its commission-
ers. Acknowledging that this question required a strict construction of the
statute, the court concluded that a waiver was compelled by necessary
implication. . . . Although the court concluded that the necessary implica-
tion arose from the text of related provisions, which included references
to any public . . . facility . . . the court extensively examined the legisla-
tive history to confirm this construction. . . . Indeed, the fact that the lion’s
share of the court’s analysis focused on this history indicates that it was
integral to the court’s conclusion and not mere dicta.’’ [Citations omitted;
internal quotation marks omitted.]).
10
The plaintiff argues that § 52-570d (c) satisfies the requirements for an
implied waiver of sovereign immunity because it instructs ‘‘any person
aggrieved’’ to file ‘‘a civil action’’ with ‘‘the Superior Court.’’
11
General Statutes (Rev. to 2003) § 53-39a, as amended by P.A. 03-97, § 2,
provides: ‘‘Whenever, in any prosecution of an officer of the Division of
State Police within the Department of Public Safety, or a member of the
Office of State Capitol Police or any person appointed under section 29-
18 as a special policeman for the State Capitol building and grounds, the
Legislative Office Building and parking garage and related structures and
facilities, and other areas under the supervision and control of the Joint
Committee on Legislative Management, or a local police department for a
crime allegedly committed by such officer in the course of his duty as such,
the charge is dismissed or the officer found not guilty, such officer shall
be indemnified by his employing governmental unit for economic loss sus-
tained by him as a result of such prosecution, including the payment of any
legal fees necessarily incurred. Such officer may bring an action in the
Superior Court against such employing governmental unit to enforce the
provisions of this section.’’
12
With respect to this claim, the plaintiff also argues that he should not
be required to plead a ‘‘substantial’’ allegation of wrongful conduct because
he asserts this court improperly added this requirement in conflict with
existing precedent at the time. In particular, the plaintiff contends that the
exception, as it was announced in Miller v. Egan, 265 Conn. 301, 828 A.2d
549 (2003), did not include such a requirement; rather, it was added by this
court two years later in Tuchman v. State, 89 Conn. App. 745, 878 A.2d 384,
cert. denied, 275 Conn. 920, 883 A.2d 1252 (2005). The plaintiff acknowledges,
however, that our Supreme Court has reiterated the exception as it was
explained in Tuchman, including the requirement that the allegation of
wrongful conduct be substantial, in cases subsequent to Miller. See, e.g.,
Columbia Air Services, Inc. v. Dept. of Transportation, 293 Conn. 342, 349,
977 A.2d 636 (2009). ‘‘[I]t is well established that this court, as an intermediate
appellate tribunal, is not at liberty to discard, modify, reconsider, reevaluate
or overrule the precedent of our Supreme Court. . . . Furthermore, it is
axiomatic that one panel of [the Appellate Court] cannot overrule the prece-
dent established by a previous panel’s holding.’’ (Citation omitted; internal
quotation marks omitted.) St. Joseph’s High School, Inc. v. Planning &
Zoning Commission, 176 Conn. App. 570, 595, 170 A.3d 73 (2017). Accord-
ingly, in light of the fact that our Supreme Court has clearly endorsed such
a requirement subsequent to its decision in Miller, we find no merit in
the plaintiff’s position that his allegations of wrongful conduct against the
defendants need not be substantial.
Further, our reading of our Supreme Court’s holding in Miller reveals
that the plaintiff’s contention is misplaced insofar as he argues that this court
imparted the requirement that an allegation of wrongful conduct against
the state be ‘‘substantial’’ in conflict with Miller’s holding. Prior to Miller,
our Supreme Court held in Antinerella v. Rioux, 229 Conn. 479, 497, 642
A.2d 699 (1994), overruled in part by Miller v. Egan, 265 Conn. 301, 325,
828 A.2d 549 (2003), that sovereign immunity did not bar a claim against
the state based on a substantial allegation of wrongful conduct to promote an
illegal purpose in excess of an officer’s statutory authority. Miller overruled
Antinerella only to the extent that such case held that sovereign immunity
did not bar ‘‘monetary damages actions against state officials acting in excess
of their statutory authority.’’ Miller v. Egan, supra, 265 Conn. 325. Miller
did not address, nor overrule, the requirement that a claim brought pursuant
to this exception be predicated on a ‘‘substantial allegation’’ of wrongful
conduct. See Columbia Air Services, Inc. v. Dept. of Transportation, supra,
293 Conn. 349 (citing Antinerella v. Rioux, supra, 497). Indeed, to conclude
otherwise would require us to read Miller as implicitly overruling decades
of precedent with respect to the requirements for seeking injunctive relief
on the basis of wrongful conduct. See Bendell v. Johnson, 153 Conn. 48,
51, 212 A.2d 199 (1965) (‘‘[O]nly those whose justiciable interests were
injured . . . would, in a proper case, be entitled to seek redress in an action
for injunctive relief. . . . [A] justiciable interest is at least one founded on
the imminence of substantial and irreparable injury. . . . An injunction is
not a matter of right. Rather, its issuance rests within the sound discretion
of the court. . . . The principle that an injunction will not issue for a trifling,
inconsequential or technical injury to a plaintiff’s rights has been consistently
followed.’’ [Citations omitted; internal quotation marks omitted.]); see also
Scoville v. Ronalter, 162 Conn. 67, 74, 291 A.2d 222 (1971) (‘‘[t]he plaintiffs
must allege facts which, if proven, would establish irreparable injury and
assume the burden of proving facts which will establish substantial and
irreparable damage if they are to prevail in their request for injunctive
relief’’).
13
This portion of the trial court’s August 6, 2015 memorandum of decision
was not vacated by the July 5, 2017 order. See footnote 4 of this opinion.