Opinion
HHDCV156059035S
09-07-2017
Lawrence S. Jezouit v. Dannel P. Malloy et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Nina F. Elgo, J.
Before this court is a motion for reconsideration filed by the defendants, Governor Dannel P. Malloy, Colleen M. Murphy, Martin M. Looney, Adam Joseph, J. Brendan Sharkey, Andrea Furlow, Leonard T. Fasano, Themis Klarides, Edwin Vargas, Francesco P. Sandillo, John A. Mockler, William F. O'Shea, The Honorable Patrick L. Carroll, III, Sharon Wilson, Martin R. Libbin, LeAnn R. Power, and Sara E. Cheeseman. In that motion, the defendants ask the court to reconsider its May 19, 2017 ruling that General Statutes § 52-570d abrogates the sovereign immunity enjoyed by the defendants by force of necessary implication.
The plaintiff commenced this civil action in April 2015. In his complaint, the plaintiff alleges that this lawsuit was precipitated by his concerns about the applicability of § 52-570d, which is titled " Action for illegal recording of private telephonic communications." More specifically, the plaintiff alleges that, on the basis of a prior experience with the Internal Revenue Service, he came to the conclusion that it is " simply unfair" and " not a level electronic playing field" that " [a] governmental agency, when operating under applicable law could choose to record telephonic communications with the public and simultaneously deny the same option to citizens who were required or desired to communicate with it . . ." After conducting " an extensive examination and study of laws governing the recording of telephone calls" in Connecticut and " the other forty-nine states, " the plaintiff engaged in " extensive citizen lobbying efforts" to convince the legislature to amend § 52-570d. The complaint further alleges that although certain bills were drafted in the General Assembly, they ultimately were not enacted, and the plaintiff thereafter " filed the present action because of his failure to succeed within the legislative process . . ."
The defendants named in the complaint are " officers, officials and/or employees" of the state and are sued in their official capacities only. Paragraphs twenty-four through thirty-five of the complaint allege that, on March 5, March 6, March 7, or March 13, 2015, the plaintiff placed various telephone calls to all defendants except Governor Malloy. Each time, the voicemail system provided " a verbal notification" to the plaintiff, who then proceeded to leave a message. The complaint alleges that, in recording the plaintiff's voicemail messages, the defendants violated § 52-570d. In addition, the complaint alleges that Governor Malloy, as " the supreme executive authority" of the state, " has failed to take care that his agents comply with [§ ]52-570d . . ." The plaintiff seeks nominal damages, injunctive relief, and an award of attorneys fees and costs.
The complaint also alleges that the plaintiff, on his own initiative, " legally recorded" those telephonic communications.
In response, the defendants moved to dismiss the action for lack of subject matter jurisdiction, asserting that their conduct is shielded by sovereign immunity. See Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007). Sovereign immunity is " a constitutional principle" and such " immunity from suit is demarcated . . . by fundamental postulates implicit in the constitutional design." Alden v. Maine, 527 U.S. 706, 729, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999). Connecticut law has " long recognized the validity of the common-law principle that the state cannot be sued without its consent . . . [B]ecause 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 . . . A sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends." (Citations omitted;, internal quotation marks omitted.) Miller v. Egan, 265 Conn. 301, 313-14, 828 A.2d 549 (2003). Accordingly, " [t]he doctrine of sovereign immunity protects the state, not only from ultimate liability for alleged wrongs, but also from being required to litigate whether it is so liable." Tuchman v. State, 89 Conn.App. 745, 751, 878 A.2d 384, cert. denied, 275 Conn. 920, 883 A.2d 1252 (2005).
At the same time, " the sovereign immunity enjoyed by the state is not absolute. There are three exceptions [that pertain to a request for injunctive or declaratory relief]: (1) when the legislature, either expressly or by force of a necessary implication, statutorily waives the state's sovereign immunity . . . (2) when an action seeks declaratory or injunctive relief on the basis of a substantial claim that the state or one of its officers has violated the plaintiff's constitutional rights . . . and (3) when an action seeks declaratory or injunctive relief on the basis of a substantial allegation of wrongful conduct to promote an illegal purpose in excess of the officer's statutory authority." (Citations omitted.) Columbia Air Services, Inc. v. Dept. of Transportation, 293 Conn. 342, 349, 977 A.2d 636 (2009). Our Supreme Court has held that " [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." Id., 350; see also Berger, Lehman Associates, Inc. v. State, 178 Conn. 352, 356, 422 A.2d 268 (" [w]hen the state waives that immunity by statute . . . a party attempting to sue under the legislative exception must come clearly within its provisions"); Adler Law Group, LLC v. Krawshuk, Superior Court, judicial district of Hartford, Docket No. CV-16-5042979, 2017 WL 2452933, *3 (May 15, 2017) (concluding that complaint lacked proper factual basis for claim that " the state has statutorily waived its immunity").
The plaintiff has not alleged an incursion upon a constitutional right, and this court previously has determined that the complaint does not contain a substantial allegation of wrongful conduct to promote an illegal purpose in excess of the officer's statutory authority. Furthermore, the plaintiff does not allege that the legislature expressly has waived sovereign immunity. Accordingly, the issue before the court in addressing the motion for reconsideration is whether § 52-570d abrogates the sovereign immunity of the defendants by force of necessary implication.
Similarly, a plaintiff who has not obtained approval from the office of the claims commissioner; see General Statutes § 4-141 et seq.; can only proceed with a claim for monetary damages against a state official acting in their official capacity if the allegations of the complaint " show that . . . the legislature, either expressly or by force of a necessary implication, statutorily waived the state's sovereign immunity . . . In the absence of a statutory waiver of sovereign immunity, the plaintiff may not bring an action against the state for monetary damages without authorization from the claims commissioner to do so." (Internal quotation marks omitted.) Avoletta v. State, 152 Conn.App. 177, 183, 98 A.3d 839, cert. denied, 314 Conn. 944, 102 A.3d 1116 (2014).
On May 19, 2017, this court ruled that § 52-570d " by necessary force of implication, abrogates sovereign immunity." The defendants now ask the court to revisit that ruling. The plaintiff has filed an opposition to the defendants' motion and an accompanying memorandum of law. For the reasons that follow, the court grants the motion to reconsider.
Whether § 52-570d waives the state's sovereign immunity by force of a necessary implication is a question of statutory construction. See Ware v. State, 118 Conn.App. 65, 74, 983 A.2d 853 (2009). " The process of statutory interpretation involves the determination of the meaning of the statutory language as applied to the facts of the case . . ." (Emphasis added; internal quotation marks omitted.) Hartford/Windsor Healthcare Properties, LLC v. Hartford, 298 Conn. 191, 197, 3 A.3d 56 (2010). The court's fundamental objective is to ascertain and give effect to the apparent intent of the legislature in applying the provisions of a statute to the " specific factual scenario" before it. Cannata v. Dept. of Environmental Protection, 239 Conn. 124, 140-41, 680 A.2d 1329 (1996).
When a waiver of statutory immunity is claimed by a party, the court must be mindful that " [t]he doctrine of sovereign immunity . . . operates as a strong presumption in favor of the state's immunity from liability or suit." (Internal quotation marks omitted.) Hicks v. State, 297 Conn. 798, 801, 1 A.3d 39 (2010). It is a " well established principle that statutes in derogation of sovereign immunity should be strictly construed . . . Where there is any doubt about their meaning or intent they are given the effect which makes the least rather than the most change in sovereign immunity." (Internal quotation marks omitted.) C.R. Klewin Northeast, LLC v. Fleming, 284 Conn. 250, 259, 932 A.2d 1053 (2007).
In Envirotest Systems Corp. v. Commissioner of Motor Vehicles, 293 Conn. 382, 978 A.2d 49 (2009), our Supreme Court clarified the standard governing claims that the legislature has waived sovereign immunity by necessary force of implication. It stated: " [I]n order for statutory language to give rise to a necessary implication that the state has waived its sovereign immunity, [t]he probability . . . must be apparent, and not a mere matter of conjecture; but . . . necessarily such that from the words employed an intention to the contrary cannot be supposed . . . In other words, in order for a court to conclude that a statute waives 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. Therefore, although a conclusion that statutory language is ambiguous ordinarily allows a court, pursuant to [General Statutes] § 1-2z, to consult extratextual sources in interpreting a statute, that avenue is unavailable when a court, in examining statutory language to determine whether a statute waives sovereign immunity by necessary implication, concludes that the language is ambiguous as to waiver. Ambiguous language, by definition, is susceptible to more than one reasonable interpretation . . . In other words, in this context, the existence of uncertainty in a statute with regard to waiver is not an ambiguity but, rather, an answer . . . [W]e must interpret any uncertainty as to the existence of a waiver as preserving sovereign immunity . . . [S]tatutory language that waives the state's sovereign immunity by necessary implication must be susceptible to only one reasonable interpretation, namely, that the state waived its sovereign immunity." (Citations omitted; emphasis in original; footnotes omitted; internal quotation marks omitted.) Envirotest Systems Corp. v. Commissioner of Motor Vehicles, 293 Conn. 382, 388-91, 978 A.2d 49 (2009). The court further explained that " the text of the statute is the exclusive source of a necessary implication." Id., 388 n.4.
Therefore, the critical inquiry in the present case is whether the waiver of sovereign immunity claimed by the plaintiff is the only possible interpretation of the language of § 52-570d as applied to the specific factual scenario alleged in the complaint. See id., 390. The specific factual scenario in this case is that the plaintiff, keenly aware of the parameters of § 52-570d, placed telephone calls to various state officials, received verbal notifications from the voicemail or answering system, and then purposefully left a voicemail message.
As its name indicates, General Statutes § 52-570d concerns the illegal recording of private telephonic communications. The statute provides in relevant part: " (a) No person shall use any instrument, device or equipment to record an oral private telephonic communication 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 accompanied 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 . . ." The plain language of § 52-570d(a) thus provides three distinct manners by which a person legally may record a private telephonic communication.
The court first considers § 52-570d(a)(1), which concerns the consent of the parties to the communication. Its plain language indicates that § 52-570d(a)(1) is satisfied in two instances--when consent is " obtained in writing" and when consent " is part of, and obtained at the start of, the recording." Because the term " consent" is not defined by that statute, its commonly approved usage governs. General Statutes § 1-1(a). " To ascertain the commonly approved usage of a word, we look to the dictionary definition of the term." (Internal quotation marks omitted.) Fairchild Heights, Inc. v. Dickal, 305 Conn. 488, 501, 45 A.3d 627 (2012). " Consent" is defined as " to give assent or approval." Merriam-Webster's Collegiate Dictionary (11th Ed. 2003). Black's Law Dictionary offers a similar definition, and further specifies various forms that such approval may take, including both " express consent" and " implied consent." It defines the latter as " [c]onsent inferred from one's conduct rather than from one's direction expression . . ." Black's Law Dictionary (9th Ed. 2009). Accordingly, § 52-570d(a)(1) reasonably may be construed to permit the recording of private telephonic communications when a party, through his or her conduct, manifests assent thereto. As applied to the specific factual scenario presented in this case, in which the very purpose of the plaintiff's telephone calls to the defendants was to place a recorded message on their voicemail systems, the court concludes that the legislature has not waived the state's sovereign immunity in such instances by force of necessary implication. Taking the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, and construing them in a manner most favorable to the pleader; Tuchman v. State, 89 Conn.App. 745, 750-51, 878 A.2d 384, cert. denied, 275 Conn. 920, 883 A.2d 1252 (2005); the court can only conclude that the plaintiff placed those telephone calls, and made those recorded communications, in a deliberate, purposeful, and knowing manner.
Furthermore, the court notes that the complaint alleges that, upon placing the telephone calls in question, the plaintiff received a " verbal notification" that preceded the recording of his telephonic communication. In such instances, a party such as the plaintiff who thereafter proceeds to leave a voicemail message on the recording device reasonably may be found to have impliedly consented to the recording of the telephonic communication in accordance with § 52-570d(a)(1). As one federal court has observed, " the persons leaving a [voicemail] message consented to the recording of their message by the fact they left a message." Payne v. Norwest Corp., 911 F.Supp. 1299, 1303 (D.Mont. 1995), aff'd in part and rev'd in part on other grounds, 113 F.3d 1079 (9th Cir. 1997). Another jurisdiction has recognized the " irrefutable fact that any reasonably intelligent person leaving a message on an ordinary answering machine would have been aware of, and consented by conduct to, the recording of the message on the answering machine tape. Absent some special showing of unique attributes of a particular answering machine cloaking its identity as an answering machine (not suggested here), we cannot imagine how one could not know and intend that the message placed upon the answering machine tape be taped, and by the very act of leaving a message, expressly consent by conduct to the taping of that message ." (Emphasis in original.) Commonwealth v. DeMarco, 396 Pa.Super. 357, 578 A.2d 942, 948 (Pa.Super. 1990); accord State v. Wilson, 138 Wash.App. 1032 (2007) (" [b]ecause [the caller] was familiar with the functions of the answering machine, we conclude that he impliedly consented to the recording by conversing after he knew the machine had started to record"). The plaintiff's complaint plainly indicates that the purpose of the telephone calls described therein was to have his communications captured on the defendants' voicemail systems. In that factual scenario, the court concludes that the plaintiff consented to those recordings, and thus cannot surmount the sovereign immunity accorded to the defendants as state officials.
The court also recognizes that § 52-570d(a)(2) permits the recording of private telephonic communications when a " verbal notification" is provided by the recording party at the beginning of the telephonic communication. Although " verbal notification" is not defined by statute, its common usage is readily apparent. " Verbal" means " of, relating to, or consisting of words"; Merriam-Webster's Collegiate Dictionary (11th Ed. 2003); and a person receives " notification" when someone else " informs the person of the fact or of other facts from which the person has reason to know or should know the fact . . ." Black's Law Dictionary (9th Ed. 2009). The complaint in the present case alleges that, at the beginning of the telephonic communications in question, the recording devices provided the plaintiff with " verbal notification" before he left voicemail messages for the defendants. The complaint lacks any allegation that the plaintiff was uninformed, confused, or misled by those verbal notifications or that he was unaware that his subsequent telephonic communications would be recorded. To conclude that such a person, upon receiving a verbal notification from a voicemail system or other telephonic answering system, did not know that their voicemail message would be recorded defies both logic and common sense. It is a well-established that " [s]tatutory construction requires common sense to avoid absurd consequences or bizarre results." (Internal quotation marks omitted.) In re Enrique S., 32 Conn.App. 431, 435, 629 A.2d 476 (1993).
" [S]overeign immunity . . . operates as a strong presumption in favor of the state's immunity from liability or suit." (Internal quotation marks omitted.) Hicks v. State, supra, 297 Conn. 801. To overcome a motion to dismiss, a plaintiff claiming a waiver by necessary force of implication must, in his or her complaint, furnish a proper factual basis for that exception to sovereign immunity. See Columbia Air Services, Inc. v. Dept. of Transportation, supra, 293 Conn. at 350; Berger, Lehman Associates, Inc. v. State, supra, 178 Conn. 356; Adler Law Group, LLC v. Krawshuk, supra, 2017 WL 2452933. The plaintiff's complaint lacks that requisite basis.
In construing the provisions of § 52-570d, this court's task is to ascertain and give effect to the apparent intent of the legislature in applying the statutory language to the " specific factual scenario" set forth in the complaint. Cannata v. Dept. of Environmental Protection, supra, 239 Conn. at 140-41; see also Envirotest Systems Corp. v. Commissioner of Motor Vehicles, supra, 293 Conn. 387 (" we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of the case"). Applying the provisions of § § 52-570d(a)(1) and § 52-570d(a)(2) to the specific factual scenario presented in this case, the court concludes that the statute does not waive sovereign immunity by force of necessary implication. The court therefore grants the defendants' motion and, upon further consideration, dismisses the complaint for lack of subject matter jurisdiction on the ground of sovereign immunity.
The court acknowledges that, after initially providing that " [n]o person shall use any instrument, device or equipment to record an oral private telephonic communication, " subject to three exceptions; see General Statutes § 52-570d(a); the statute then delineates eight classes of persons who are exempt therefrom, including certain state law enforcement and public safety officials. See General Statutes § 52-570d(b). On that basis, the plaintiff argues that the structure of § 52-570d indicates that the legislature, by force of necessary implication, plainly intended to waive sovereign immunity with respect to non-exempted state officials, citing the maxim that " courts should not imply exceptions to a statute which the legislature did not prescribe by word or implication." Caulkins v. Petrillo, 200 Conn. 713, 719, 513 A.2d 43 (1986). His argument as to the exemptions enumerated in § 52-570d(b) also is bolstered by the precept that " when the items expressed are members of an associated group or series, [the court] may invoke the canon of statutory construction known as expressio unius est exclusio alterius--the expression of one thing is the exclusion of another--and infer that the item not mentioned . . . was excluded by deliberate choice." (Internal quotation marks omitted.) Sastrom v. Psychiatric Security Review Board, 291 Conn. 307, 319 n.15, 968 A.2d 396 (2009). Although the plaintiff's contention might have some merit in other factual contexts, such as when a party was unaware that their telephonic communication would be recorded, the court nevertheless concludes that it does not in the specific factual scenario presented in this case.