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Jezouit v. Malloy

Court of Appeals of Connecticut

October 15, 2019

LAWRENCE S. JEZOUIT
v.
DANNEL P. MALLOY ET AL.

          Argued May 22, 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 defendants' 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 dismissing the action, from which the plaintiff appealed to this court. Affirmed.

          David V. DeRosa, 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.

         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 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 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 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 ‘‘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 equipment, personal or otherwise, to record telephonic communications in violation 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 immunity 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 reconsideration 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 plaintiff'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. Commissioner 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 dismissed his complaint because § 52-570d waives sovereign 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 interpreted as waiving sovereign immunity by force of necessary 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 principles 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 omitted.) 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 subjection of the state and federal governments to private litigation might constitute a serious interference with the performance of their functions and with their control 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 doctrine are few and narrowly construed under our jurisprudence.'' (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 common 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 established under our case law. . . . It has deep roots in this state and our legal system in general, finding its origin in ancient common law. . . . [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; emphasis omitted; internal quotation marks omitted.) Envirotest 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.'' (Emphasis 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. Commissioner of Motor Vehicles, supra, 293 Conn. 390. 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 interpretation of the [statutory] language.'' (Emphasis in original.) Id. Thus, unlike our typical process of statutory 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 ...


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