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Jezouit v. Malloy

Appellate Court of Connecticut

October 15, 2019

Lawrence S. JEZOUIT
v.
Dannel P. MALLOY et al.

         Argued May 22, 2019

          Appeal from the Superior Court, Judicial District of Hartford, Elgo, J.

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          David V. DeRosa, Naugatuck, with whom, on the brief, was Lawrence 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).

         DiPentima, C. J., and Moll and Beach, Js.

          OPINION

         DiPENTIMA, C. J.

         [193 Conn.App. 578] 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 relevant 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

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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.

         [193 Conn.App. 579] After researching the law, the plaintiff concluded that the state’s routine practice of recording telephone communications 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 ubiquitous 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 [193 Conn.App. 580] that these recordings were obtained illegally because the defendants failed to obtain consent or to provide notice in a manner required by

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§ 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 "injunctive relief, preliminary and permanent, enjoining the defendants and the state of Connecticut, its officials, officers, agencies, departments and employees from illegally recording telephonic communications whenever performing any duties or conducting any business on behalf of the state, and in particular from utilizing any device, instruments or ...


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