Praisner v. State

336 Conn. 420

• Court: Supreme Court of Connecticut
• Decided: August 3, 2020
• Docket: SC20315
• Status: Published

Opinion

MARTIN J. PRAISNER, JR. v. STATE OF CONNECTICUT (SC 20315) Robinson, C. J., and Palmer, McDonald, Mullins, Kahn, Ecker and Vertefeuille, Js.* Syllabus Pursuant to statute ((Rev. to 2013) § 53-39a), ‘‘[w]henever, in any prosecution of an officer of the Division of State Police . . . or a local police depart- ment for a crime allegedly committed by such officer in the course of his duty as such, the charge is dismissed or the officer is found not guilty, such officer shall be indemnified by his employing governmental unit for economic loss sustained by him as a result of such prosecu- tion . . . .’’ The plaintiff, who had been a member of a special police force maintained by the defendant state of Connecticut for Eastern Connecticut State University, sought, pursuant to statute ((Rev. to 2013) § 53-39a), indemni- fication from the state for economic losses that he allegedly had incurred as a result of federal criminal charges filed against him, but that ulti- mately were dismissed, for alleged misconduct while he was a member of that special police force. The state filed a motion to dismiss for lack of subject matter jurisdiction, claiming that members of a university’s special police force do not fall within the class of individuals who are

* The listing of justices reflects their seniority status on this court as of the date of oral argument. March 30, 2021 CONNECTICUT LAW JOURNAL Page 37

336 Conn. 420 MARCH, 2021 421 Praisner v. State expressly authorized to bring an action against the state pursuant to § 53-39a. The trial court denied the motion to dismiss, concluding that a member of a university’s special police force did fall under the category of a member of a local police department, as that term is used in § 53- 39a. The trial court subsequently denied the state’s motion for summary judgment, in which the state renewed its claim that the court lacked subject matter jurisdiction. Thereafter, the court granted the plaintiff’s motion for summary judgment as to liability only and, after a hearing in damages, rendered judgment for the plaintiff, from which the state appealed to the Appellate Court. The Appellate Court reversed the trial court’s judgment, concluding that the trial court incorrectly determined that the plaintiff was authorized to bring the present action pursuant to § 53-39a. The Appellate Court reasoned that the legislature did not intend to include members of a university’s special police force within the definition of ‘‘local police department,’’ as used in § 53-39a, because the legislature’s explicit inclusion of members of some police forces within the limited jurisdictional authority in the language of the statute indicated that its failure to specifically mention members of a university’s special police force was intentional. The Appellate Court noted that the university’s special police force was created pursuant to a statute ((Rev. to 2013) § 10a-142) that provides that such a force has some, but not all, of the duties, responsibilities and authority of local police departments, limitations that provided further indication that the legislature under- stood a university’s special police force to be a separate and distinct entity from a local police department. The Appellate Court further noted that § 10a-142 (e) contains an indemnification provision applicable only to members of a university’s special police force, indicating that the legislature did not intend the more general provisions of § 53-39a to apply to such members. On the granting of certification, the plaintiff appealed to this court. Held that the Appellate Court correctly deter- mined that a member of a university’s special police force is not a member of a local police department entitled to indemnification under § 53-39a, and, because that court’s well reasoned decision correctly resolved the issue on which certification was granted, any further analy- sis regarding the interpretation of § 53-39a served no useful purpose; moreover, the legislative history of a 2017 amendment to § 53-39a, which eliminated the phrase ‘‘local police department’’ and added the phrase ‘‘any member of a law enforcement unit,’’ indicated that the change was not clarifying in nature and, thus, one that would retroactively apply to the plaintiff, but, instead, was a subsequent, substantive change; furthermore, there was no indication that the legislature enacted the 2017 amendment in direct response to any judicial decision that the legislature deemed incorrect, as the trial court had not yet rendered judgment in the present case when that amendment was enacted. Argued January 13—officially released August 3, 2020**

** August 3, 2020, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes. Page 38 CONNECTICUT LAW JOURNAL March 30, 2021

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Procedural History

Action for indemnification for economic losses alleg- edly incurred by the plaintiff as a result of a federal crim- inal action filed against him in his capacity as a member of a special police force, and for other relief, brought to the Superior Court in the judicial district of Hartford, where the court, Hon. Richard M. Rittenband, judge trial referee, denied the defendant’s motion to dismiss; thereafter, the court, Scholl, J., denied the defendant’s motion for summary judgment and granted the plain- tiff’s motion for summary judgment as to liability; subse- quently, after a hearing in damages, the court, Pittman, J., rendered judgment for the plaintiff, from which the defendant appealed to the Appellate Court; thereafter, the court, Pittman, J., granted the plaintiff’s motion for attorney’s fees and costs, and the defendant filed an amended appeal with the Appellate Court, DiPentima, C. J., and Prescott and Elgo, Js., which reversed the trial court’s judgment, and the plaintiff, on the granting of cer- tification, appealed to this court. Affirmed. Elliot B. Spector, with whom was David Yale, for the appellant (plaintiff). Emily V. Melendez, assistant attorney general, with whom, on the brief, were William Tong, attorney gen- eral, and Clare Kindall, solicitor general, for the appel- lee (defendant). Opinion

MULLINS, J. The sole issue in this certified appeal is whether the Appellate Court correctly concluded that a university police officer is not a member of a ‘‘local police department’’ entitled to indemnification under General Statutes (Rev. to 2013) § 53-39a.1 The plaintiff, Martin J. Praisner, Jr., argues that the Appellate Court 1 Hereinafter, unless otherwise indicated, all references to § 53-39a are to the 2013 revision of the statute. March 30, 2021 CONNECTICUT LAW JOURNAL Page 39

336 Conn. 420 MARCH, 2021 423 Praisner v. State

erred in concluding that a university’s special police force is not a ‘‘local police department’’ for purposes of § 53- 39a, and that the legislature, by limiting coverage to local police departments, did not intend for university special police forces to be covered under this statute. We con- clude that the Appellate Court correctly interpreted § 53- 39a and, accordingly, affirm the judgment of the Appel- late Court. The opinion of the Appellate Court sets forth the fol- lowing relevant facts and procedural history. At all rel- evant times, the defendant, the state of Connecticut, ‘‘maintained a special police force for Eastern Connect- icut State University (university). The plaintiff was a member of that special police force and an employee of the state. While on duty on September 1, 2008, the plaintiff was involved in an incident in which he alleg- edly ‘deployed pepper spray against an intoxicated and violent prisoner in a converted Sheetrock coat closet, which was used as a holding cell, and failed to promptly decontaminate the prisoner.’ Weeks later, the plaintiff was placed on paid administrative leave by the univer- sity. He thereafter applied for a position with the . . . Department of Correction (department) and was hired as a correction officer on August 15, 2009. ‘‘On December 1, 2009, the plaintiff was indicted by the federal government and charged with the crimes of conspiracy to violate an individual’s civil rights in vio- lation of 18 U.S.C. § 241 and deprivation of an individ- ual’s civil rights in violation of 18 U.S.C. § 242. Following his arrest, the plaintiff’s employment with the depart- ment was terminated. After two federal trials that both resulted in hung juries, the United States District Court for the District of Connecticut on August 10, 2011, granted the government’s motion to dismiss the indictment against the plaintiff. ‘‘The plaintiff subsequently demanded reimburse- ment from the state for economic losses that he alleg- Page 40 CONNECTICUT LAW JOURNAL March 30, 2021

424 MARCH, 2021 336 Conn. 420 Praisner v. State

edly incurred as a result of his federal prosecution. When the state declined to do so, the plaintiff commenced the present action. His one count complaint sought indem- nification pursuant to § 53-39a ‘for economic losses sus- tained . . . as a result of the aforesaid arrest and prose- cution, including the payment of any legal fees incurred in pursuing these damages.’2 ‘‘In response, the state moved to dismiss the action for lack of subject matter jurisdiction. In the memorandum of law that accompanied [the motion to dismiss], the state acknowledged that § 53-39a ‘waives the [s]tate’s immunity to liability and suit,’ but only with respect to ‘those individuals who fall within the designated classi- fications’ set forth in that statute. The state then argued that (1) members of the university’s special police force do not fall within the class of individuals who expressly are authorized to bring an action against the state pur- suant to § 53-39a, and (2) the complaint contained no allegation that the plaintiff had obtained permission from the Claims Commissioner to institute the action for mon- etary relief. See General Statutes § 4-160. The plaintiff filed an objection to the motion to dismiss, [in response] to which the state filed a reply brief. ‘‘The court, Hon. Richard M. Rittenband, judge trial referee, heard argument from the parties on March 17, 2014. In an order issued later that day, the court con- cluded that a member of the university’s special police force ‘falls under the category of a member of a local police department’ as that term is used in § 53-39a. The court therefore denied the motion to dismiss. The state filed a motion to reargue that ruling, which the court denied. 2 ‘‘The plaintiff’s claimed damages included ‘lost overtime’ with the univer- sity’s special police force; ‘lost employment’ and ‘lost overtime’ with the department; ‘lost pension benefits and contributions’; ‘lost insurance, sick time and vacation time’; and ‘future lost earnings.’ ’’ Praisner v. State, 189 Conn. App. 540, 544 n.3, 208 A.3d 667 (2019). March 30, 2021 CONNECTICUT LAW JOURNAL Page 41

336 Conn. 420 MARCH, 2021 425 Praisner v. State

‘‘The state then answered the complaint, and the plaintiff filed a certificate of closed pleadings, in which he requested a court trial. On January 13, 2017, the state filed a motion for summary judgment, renewing its claim that the court lacked subject matter jurisdiction due to sovereign immunity. Relying on the law of the case doc- trine, the court, Scholl, J., denied that motion. The court at that time also granted the plaintiff’s . . . motion for summary judgment as to liability only. A hearing in damages followed, at the conclusion of which the court, Pittman, J., rendered judgment in favor of the plaintiff ‘in the amount of $658,849 in lost earnings and benefits . . . .’ Approximately one month later, the court ren- dered a supplemental judgment, in which it awarded the plaintiff $118,196.04 in attorney’s fees and costs.’’ (Footnote in original; footnotes omitted.) Praisner v. State, 189 Conn. App. 540, 543–45, 208 A.3d 667 (2019). The state appealed from the judgment of the trial court to the Appellate Court. On appeal, the state claimed that the trial court incorrectly determined that the plain- tiff was authorized to bring the present action pursu- ant to § 53-39a. See id., 545. The Appellate Court agreed with the state; id.; and concluded that ‘‘the plaintiff has not established a reasonable basis on which to conclude that his claim for indemnification falls within the statu- tory waiver of sovereign immunity contained in § 53- 39a.’’ Id., 555. The Appellate Court began by noting that the ‘‘term ‘local police department’ is not defined in § 53-39a or elsewhere in the General Statutes.’’ Id., 549. As a result, the court relied on the text of § 53-39a and its relation- ship to other statutes to conclude that the legislature did not intend to include members of a university’s special police force within the definition of ‘‘local police depart- ment.’’ (Internal quotation marks omitted.) Id., 549– 50. Specifically, the Appellate Court concluded that, because the legislature chose to explicitly include mem- bers of some police forces with limited jurisdictional Page 42 CONNECTICUT LAW JOURNAL March 30, 2021

426 MARCH, 2021 336 Conn. 420 Praisner v. State

authority in the language of the statute, its failure to specifically mention members of the university’s police force was intentional.3 See id.

The Appellate Court further reasoned that General Statutes (Rev. to 2013) § 10a-142,4 which created the university’s special police force, demonstrates that the legislature did not intend a university’s special police force to be treated as a local police department but under- 3 The plaintiff argued that the term ‘‘local police department,’’ as used in § 53-39a, means a police force with limited geographical jurisdiction and, thus, included a university’s special police force because it was confined to the geographical limits of the property owned or controlled by the univer- sity. See Praisner v. State, supra, 189 Conn. App. 549. The Appellate Court relied on the text of § 53-39a and its specific mention of ‘‘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 . . . .’’ General Statutes (Rev. to 2013) § 53-39a; see Praisner v. State, supra, 549–50. The Appellate Court reasoned that, because the legislature chose to specifically include members of these police forces with limited jurisdictional authority in the language of the statute, its failure to specifically mention members of the university’s special police forces was intentional. See Praisner v. State, supra, 549–50, citing DeNunzio v. DeNunzio, 320 Conn. 178, 194, 128 A.3d 901 (2016); see also DeNunzio v. DeNunzio, supra, 194 (‘‘[u]nder the doctrine of expressio unius est exclusio alterius—the expression of one thing is the exclusion of another—we presume that when the legislature expresses items as part of a group or series, an item that was not included was deliberately excluded’’). We agree. This court has frequently recognized the principle of statutory construction that, ‘‘[u]nless there is evidence to the contrary, statutory itemization indicates that the legislature intended the list to be exclusive.’’ (Internal quotation marks omitted.) Feehan v. Marcone, 331 Conn. 436, 472, 204 A.3d 666, cert. denied, U.S. , 140 S. Ct. 144, 205 L. Ed. 2d 35 (2019). Accordingly, the fact that § 53-39a contains express reference to some police forces within the state with limited geographical authority, but does not expressly reference university police officers, indicates that the legislature did not intend to include members of the university’s police force in the waiver of sovereign immunity set forth in § 53-39a. 4 General Statutes § 10a-142 is now codified at General Statutes § 10a- 156b. The plaintiff commenced this action on July 19, 2013. Therefore, the operative statute is General Statutes (Rev. to 2013) § 10a-142, as amended by No. 13-195, § 1, of the 2013 Public Acts (P.A. 13-195). Unless otherwise indicated, all references to § 10a-142 in this opinion are to that revision, as amended by P.A. 13-195, § 1. March 30, 2021 CONNECTICUT LAW JOURNAL Page 43

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stood it to be a separate entity with different benefits and duties. See id., 550–51. In support of this analysis, the Appellate Court noted that § 10a-142 (a) provides that a university’s special police force has some, but not all, of the duties, responsibilities and authority of local police departments. Id., 551. Those limitations, the Appellate Court determined, provided further evidence that the legislature understood a university’s special police force to be a separate and distinct entity from local police departments. See id., 551–52. The Appellate Court also relied on the fact that § 10a- 142 (e) contains an indemnification provision appli- cable only to members of a university’s special police force. See id., 554. The Appellate Court reasoned that the specific indemnification provision applicable to members of a university’s special police force signifies that the legislature did not intend the more general pro- visions of § 53-39a to apply to members of a universi- ty’s special police force. See id., 554–55. Accordingly, the Appellate Court concluded that the trial court incor- rectly determined that the plaintiff’s claim fell within the waiver of statutory immunity in § 53-39a and, thus, reversed the trial court’s judgment. Id., 543, 555–56. Thereafter, the plaintiff filed a petition for certifica- tion to appeal, which we granted, limited to the follow- ing issue: ‘‘Did the Appellate Court [correctly] hold that a university police officer is not a member of a ‘local police department’ entitled to indemnification under . . . § 53-39a?’’ Praisner v. State, 332 Conn. 905, 208 A.3d 1239 (2019). After reviewing the parties’ briefs, the record and oral argument, we conclude that the Appellate Court’s rea- soning and analysis were sound, and that its conclu- sion was correct. Repeating its analysis regarding the interpretation of the statute, with which we fully agree, would serve no useful purpose. Nevertheless, we address one additional issue that was not squarely addressed in the Appellate Court’s Page 44 CONNECTICUT LAW JOURNAL March 30, 2021

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opinion, namely, whether No. 17-87 of the 2017 Public Acts (P.A. 17-87), which amended § 53-39a, is clarifying legislation.5 Specifically, the plaintiff claims that, by elim- inating the phrase ‘‘local police department’’ and adding the phrase ‘‘any member of a law enforcement unit,’’ the legislature was simply clarifying its original intent that all police officers, including a university’s special force, are included within the indemnification provisions in § 53-39a. See P.A. 17-87, § 3. The plaintiff asserts, there- fore, that P.A. 17-87 supports his interpretation of § 53- 39a and that his claim for indemnification against the state is, and has always been, covered by the waiver of sovereign immunity in § 53-39a. We reject this conten- tion. We begin by discussing the legal standard that we apply in determining whether the legislature intended statutory amendments to be clarifying in nature. ‘‘We 5 Section 3 of No. 17-87 of the 2017 Public Acts provides: ‘‘Section 53-39a of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2017): ‘‘Whenever, in any prosecution of [an officer of the Division of State Police within the Department of Emergency Services and Public Protection, or a member of the Office of State Capitol Police or] any member of a law enforcement unit, as defined in section 7-294a, 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 depart- ment] any inspector in the Division of Criminal Justice for a crime allegedly committed by such [officer] member, person or inspector in the course of [his] duty, [as such,] the charge is dismissed or the [officer] member, person or inspector found not guilty, such [officer] member, person or inspector shall be indemnified by [his] such member’s, person’s or inspector’s employing governmental unit for economic loss sustained by [him] such member, person or inspector as a result of such prosecution, including the payment of attorney’s fees and costs incurred during the prosecution and the enforcement of this section. Such [officer] member, person or inspector may bring an action in the Superior Court against such employing govern- mental unit to enforce the provisions of this section.’’ We note that the additions to the statute made by the act are underlined and the deletions are in brackets. March 30, 2021 CONNECTICUT LAW JOURNAL Page 45

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presume that, in enacting a statute, the legislature intended a change in existing law. . . . This presump- tion, like any other, may be rebutted by contrary evi- dence of the legislative intent in the particular case. An amendment which in effect construes and clarifies a prior statute must be accepted as the legislative declara- tion of the meaning of the original act. . . . An amend- ment that is intended to clarify the original intent of an earlier statute necessarily has retroactive effect.’’ (Cita- tions omitted; internal quotation marks omitted.) State v. State Employees’ Review Board, 239 Conn. 638, 648– 49, 687 A.2d 134 (1997). ‘‘To determine whether the legislature enacted a statu- tory amendment with the intent to clarify existing leg- islation, we look to various factors, including, but not limited to (1) the amendatory language . . . (2) the declaration of intent, if any, contained in the public act . . . (3) the legislative history . . . and (4) the circum- stances surrounding the enactment of the amendment, such as, whether it was enacted in direct response to a judicial decision that the legislature deemed incorrect . . . or passed to resolve a controversy engendered by statutory ambiguity . . . . In the cases wherein this court has held that a statutory amendment had been intended to be clarifying and, therefore, should be applied retroactively, the pertinent legislative history has provided uncontroverted support . . . for the con- clusion that the legislature considered the amendatory language to be a declaration of the legislature’s origi- nal intent rather than a change in the existing statute.’’ (Citations omitted; emphasis omitted; internal quota- tion marks omitted.) Middlebury v. Dept. of Environmen- tal Protection, 283 Conn. 156, 174, 927 A.2d 793 (2007). Contrary to the plaintiff’s claim, a review of the lan- guage of P.A. 17-87 does not contain any indication that the legislature intended the act to clarify the existing statute. Instead, a review of the legislative history of Page 46 CONNECTICUT LAW JOURNAL March 30, 2021

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the act demonstrates that the legislature actually under- stood P.A. 17-87 to create a new right that was not pre- viously applicable to certain classes of police officers. For instance, during a debate on the bill that became P.A. 17-87, Representative Steven Stafstrom explained that ‘‘[i]t expands the type of law enforcement officers who must be indemnified.’’ 60 H.R. Proc., Pt. 17, 2017 Sess., p. 7101. In the Senate, Senator Paul R. Doyle introduced this bill. In doing so, and during debate on this bill, the senators did not say anything about the purpose of the legislation. There is also no purpose contained within the act itself. There is simply no indication from the language or the debates that the legislature intended the act merely to clarify the individuals who had always been subject to the indemnification in § 53-39a. Furthermore, there also is no indication whatsoever that the legislature enacted this act in direct response to any judicial decision that the legislature deemed incorrect. We note that, when the legislature passed P.A. 17-87, the trial court had not yet rendered judgment in the present case, and the rulings of the court allowing the case to move forward to trial were favorable to the plain- tiff. Similarly, there is no indication that the legislature passed this act to resolve any controversy engendered by statutory ambiguity. To be sure, cases in which this court has concluded that an act is clarifying legislation demonstrate the type of legislative history that we have relied on as uncontro- verted support that the legislature intended an act to be clarifying legislation. For example, in Reliance Ins. Co. v. American Casualty Co. of Reading, Pennsylva- nia, 238 Conn. 285, 679 A.2d 925 (1996), this court relied on a statement by Representative Richard D. Tulisano that, ‘‘[i]n drafting this, it was intended to be a recital. What we believe current law was and has been, there is a recent Supreme Court case that may have interpre- ted [the law] differently and I think it is a restatement March 30, 2021 CONNECTICUT LAW JOURNAL Page 47

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of what we consider [the] law to be at this point in time.’’ (Emphasis omitted; internal quotation marks omitted.) Id., 290–91, quoting 36 H.R. Proc., Pt. 27, 1993 Sess., p. 9673. In the present case, the plaintiff does not point to, and we cannot find, any similar legislative history sup- porting his claim that the legislature enacted P.A. 17-87 in response to a particular judicial decision or because of statutory ambiguity. Thus, the language of P.A. 17-87, its legislative history, and the circumstances surrounding its enactment do not provide the ‘‘uncontroverted support’’ required to conclude that the legislature intended P.A. 17-87 to be ‘‘a declaration of the legislature’s original intent rather than a change in the existing statute.’’ (Emphasis omit- ted; internal quotation marks omitted.) Middlebury v. Dept. of Environmental Protection, supra, 283 Conn. 174. Accordingly, we reject the plaintiff’s claim that P.A. 17-87 demonstrates that the legislature intended his claim for indemnification against the state to be covered under § 53-39a. In sum, having reviewed the briefs of the parties and the record on appeal, we conclude that the issue on which we granted certification was correctly resolved in the well reasoned opinion of the Appellate Court. Con- sistent with that conclusion, we further conclude that P.A. 17-87 was a subsequent, substantive change to the statute and, thus, not retroactively applicable to the plaintiff in this case. On the basis of the foregoing, we conclude that the Appellate Court correctly concluded that a university’s special police force is not a local police department for purposes of § 53-39a. The judgment of the Appellate Court is affirmed. In this opinion the other justices concurred.