Opinion
No. CV 07-5012152-S
December 10, 2009
MEMORANDUM OF DECISION
I
On November 13, 2008, this court granted summary judgment in favor of the John Dempsey Hospital and the University of Connecticut Health Center (collectively, the state) on the grounds that this court lacked subject matter jurisdiction because the claims commissioner did not have the authority to vacate his January 30, 2007 dismissal and grant the plaintiff, Vayle Nelson, through her parents and next friends, Susan Birk and Glen Nelson, permission to sue the state on July 11, 2007. On December 1, 2008, the plaintiff moved to reargue the motion, and on February 11, 2009, this court, while granting the motion to reargue, denied the request to modify the earlier decision.
The state filed its opposition to the motion to reargue on December 11, 2008 (although it was dated, by mistake, December 8, 2007), and this court heard argument on February 4, 2009.
On May 20, 2009, Governor Rell signed No. 09-44 of the 2009 Public Acts, entitled "An Act Concerning Claims Against the State," which repealed and revised General Statutes § 4-158, and, according to the plaintiff, provided authority to the claims commissioner to in fact take the actions he did on July 11, 2007. Additionally, the act was worded to make it retroactive to that time. Accordingly, the plaintiff has now moved to set aside the November 13, 2008 summary judgment.
As of November 13, 2008, General Statutes § 4-158 (Rev. to 2009) provided:
(a) The Claims Commissioner may (1) order that a claim be denied or dismissed, (2) order immediate payment of a just claim in an amount not exceeding seven thousand five hundred dollars, (3) recommend to the General Assembly payment of a just claim in an amount exceeding seven thousand five hundred dollars, or (4) authorize a claimant to sue the state, as provided in section 4-160.
(b) Any person who has filed a claim for more than seven thousand five hundred dollars may request the General Assembly to review a decision of the Claims Commissioner (1) ordering the denial or dismissal of the claim pursuant to subdivision (1) of subsection (a) of this section, including denying or dismissing a claim that requests permission to sue the state, or (2) ordering immediate payment of a just claim in an amount not exceeding seven thousand five hundred dollars pursuant to subdivision (2) of subsection (a) of this section. A request for review shall be in writing and filed with the Office of the Claims Commissioner not later than twenty days after the date the person requesting such review receives a copy of the decision. The filing of a request for review shall automatically stay the decision of the Claims Commissioner.
(c) The Claims Commissioner shall submit each claim for which a request for review is filed pursuant to this section to the General Assembly pursuant to section 4-159.
(d) If the Claims Commissioner orders immediate payment of a just claim in an amount not exceeding seven thousand five hundred dollars pursuant to subdivision (2) of subsection (a) of this section and a request for review is no timely filed pursuant to subsection (b) of this section, the clerk of the Office of the Claims Commissioner shall deliver to the Comptroller a certified copy of the Claims Commissioner's order and the Comptroller shall make payment from such appropriation as the General Assembly may have made for the payment of claims or, in the case of contractual claims for goods or services furnished or for property leased, from the appropriation of the agency which received such goods or services or occupied such property.
(e) Not later than five days after the convening of each regular session, the Claims Commissioner shall report to the General Assembly on all claims decided pursuant to this section.
II
In the November 13, 2008 decision, this court found that General Statutes §§ 4-158 and 4-159 provided a certain framework for reviewing decisions of the claims commissioner. Specifically, and for purposes of this motion, this court held that unless the claims commissioner recommended payment over $7,500 or the applicant requested review with the legislature, he did not retain jurisdiction over the claims. Accordingly, this court found that he did not have jurisdiction to vacate his prior dismissal, and thus his subsequent waiver of sovereign immunity was improper. The plaintiff maintains that P.A. 09-44 corrected this situation. It states in subsection (e): "[w]henever the Claims Commissioner deems it just and equitable, the Claims Commissioner may, at any time prior to the submission of a claim to the General Assembly pursuant to subsection (a) of section 4-159, vacate the decision made pursuant to subsection (a) of this section and undertake such further proceedings in accordance with this chapter as the Claims Commissioner may, in his or her discretion, deem appropriate." (Emphasis added.) The bill was made " [e]ffective from passage [May 20, 2009] and applicable to claims filed prior to, on or after said date." (Emphasis added.) On its face, the bill suggests that the claims commissioner is authorized to vacate his dismissal for the procedural violation and reinstate the plaintiff's claim.
The prior dismissal was for failure to comply with discovery orders.
This court noted that under the discovery of new evidence statute, General Statutes § 4-156, the claims commissioner could reconsider, but that it did not apply to this situation. See Nelson v. Dettmer, Superior Court, complex litigation docket at Hartford, Docket No. X07 CV 07 5012152 (February 11, 2009, Berger, J.) ( 47 Conn. L. Rptr. 218) ( Nelson II).
The state objects to this motion on three grounds. First, it claims that the motion was not timely brought within four months of decision pursuant to General Statutes § 52-212a. Second, it claims that the amendment, as drafted, does not impact this court's earlier decision. Third, it argues that the waiver of sovereign immunity was in violation of the constitution of Connecticut, article first, § 1, in that it constitutes a private emolument.
Article first, § 1 of the constitution of Connecticut provides: "All men when they form a social compact, are equal in rights; and no man or set of men are entitled to exclusive public emoluments or privileges from the community."
III
General States § 52-212a provides in relevant part: "Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, a civil judgment or decree rendered in the Superior Court may not be opened or set aside unless a motion to open or set aside is filed within four months following the date on which it was rendered or passed." The state acknowledges that there are two exceptions to this four-month time period: where the court has continuing jurisdiction and "unless otherwise provided by law," and it maintains that neither exception applies.
A
The state first argues that the present motion was not timely filed within four months as this court granted the motion for summary judgment on November 13, 2008, and the motion to set aside was not filed until June 11, 2009. As noted, General Statutes § 52-212a mandates that the motion to set aside be "filed within four months following the date on which it was rendered or passed." (Emphasis added.) The plaintiff responds by noting that since she has filed a motion to reargue that decision pursuant to section 11-12 of the Practice Book and this court did not rule on that motion until February 11, 2009, her motion to set aside was properly filed as it was within the four-month period from that decision.
Practice Book § 11-12 provides in relevant part: "Motion to Reargue
(a) A party who wishes to reargue a decision or order rendered by the court shall, within twenty days from the issuance of notice of the rendition of the decision or order, file a motion to reargue setting forth the decision or order which is the subject of the motion, the name of the judge who rendered it, and the specific grounds for reargument upon which the party relies . . .
(c) The motion to reargue shall be considered by the judge who rendered the decision or order. Such judge shall decide, without a hearing, whether the motion to reargue should be granted. If the judge grants the motion, the judge shall schedule the matter for hearing on the relief requested.
(d) This section shall not apply to motions to reargue decisions which are final judgments for purposes of appeal. Such motions shall be filed pursuant to Section 11-11.
Inasmuch as the summary judgment discussed herein only applies to the State and not the remaining parties, it constitutes a partial judgment and Practice Book § 11-12 applies.
While there is no appellate authority directly on point, this court notes that in a somewhat similar context concerning the finality of a dissolution judgment where a motion for reconsideration had been filed, the Supreme Court held that "because the defendant filed a motion for reconsideration, the judgment ultimately did not become final until the dissolution court acted on his motion." Weinstein v. Weinstein, 275 Conn. 671, 698, 882 A.2d 53 (2005). In so holding, the court acknowledged that it had previously "recognized in an analogous context that the filing of a motion for reconsideration should be treated as suspending the finality of judgment when the effect of a ruling on the motion can affect the substantive rights of the parties." Id., 698-99, citing Killingly v. Connecticut Siting Council, 220 Conn. 516, 525-27, 600 A.2d 752 (1991). "Such a result," the court explained, "is consistent with the rule that the filing of a motion that seeks an alteration, rather than a clarification, of the judgment suspends the appeal period." Id., 699; see Practice Book § 63-1(c). Likewise, in the foreclosure context, the modification of a judgment "replaces the original judgment and becomes the only valid judgment in the case." Coxe v. Coxe, 2 Conn.App. 543, 547, 481 A.2d 86 (1984).
Practice Book § 63-1(c) provides in relevant part:
(c) New appeal period
(1) How new appeal period is created
"If a motion is filed within the appeal period that, if granted, would render the judgment, decision or acceptance of the verdict ineffective, either a new twenty day period or applicable statutory time period for filing the appeal shall begin on the day that notice of the ruling is given on the last such outstanding motion, except as provided for additur or remittitur in the next paragraph.
"If a motion for additur or remittitur is filed within the appeal period and granted, a new twenty day appeal period shall begin upon the earlier of (A) acceptance of the additur or remittitur or (B) the expiration of the time set for the acceptance. If the motion is denied, the new appeal period shall begin on that day that notice of the ruling is given.
"Motions that, if granted, would render a judgment, decision or acceptance of the verdict ineffective include, but are not limited to, motions that seek: the opening or setting aside of the judgment; a new trial; the setting aside of the verdict; judgment notwithstanding the verdict; reargument of the judgment or decision; collateral source reduction; additur; remittitur; or any alteration of the terms of the judgment.
"Motions that do not give rise to a new appeal period include those that seek: clarification or articulation, as opposed to alteration, of the terms of the judgment or decision; a written or transcribed statement of the trial court's decision; or reargument of a motion listed in the previous paragraph . . ."
In the present case, this court, after receiving memoranda from both sides, granted the motion to reargue and held a hearing on February 4, 2009. The February 11, 2009 decision reviewed those arguments but did not change the earlier ruling. Had this court modified the November 13, 2008 decision, certainly no one would logically argue that the four-month period would still run from the earlier date.
Logic thus dictates the conclusion that the four-month period would commence on the date of this court's decision on the motion to reargue, February 11, 2009.
B
Notwithstanding whether the motion was filed within the time limit, the plaintiff maintains that this court has continuing jurisdiction because, pursuant to section 62-4 of the Practice Book, "[a] case that has been appealed shall remain on the docket of the court where it was tried until the appeal is decided or terminated." Moreover, "[i]t is well established that a trial court properly may open a judgment while an appeal is pending, even to address the issue raised on appeal." RAL Management, Inc. v. Valley View Associates, 278 Conn. 672, 682, 899 A.2d 586 (2006). As noted in Kim v. Magnotta, 249 Conn. 94, 104, 733 A.2d 809 (1999), however, "the substantive provisions of § 52-212a are fully enforceable as a limitation on the authority of the trial court to grant relief from a judgment after the passage of four months. Thus construed, § 52-212a operates as a constraint, not on the trial court's jurisdictional authority, but on its substantive authority to adjudicate the merits of the case before it."
The issue, thus, is not whether the court had continuing jurisdiction, but rather whether it has the authority to reopen its prior decision pursuant to some other statute. This case does not present a traditional use of continuing jurisdiction, such as with an injunction; Adams v. Vaill, 158 Conn. 478, 482, 262 A.2d 169 (1969); or vindicating a judgment; AvalonBay Communities, Inc. v. Plan Zoning Commission, 260 Conn. 232, 246, 796 A.2d 1164 (2002). Accordingly, this court concludes that the first exception to § 52-212a, which requires that the court have continuing jurisdiction, does not apply.
The second exception, "unless otherwise provided by law," must next be examined. In Kim v. Magnotta, supra, 249 Conn. 109, our Supreme Court analyzed a violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq., and found that the trial court had the authority to reopen a stipulated judgment, notwithstanding the passage of four months, for three reasons. First, the court held that imposing the rule was inconsistent with the remedial purposes of the statute. Id., 107. Second, the court held that the liberal construction afforded to the legislation necessitated that the court have discretion to reexamine the stipulated judgment. Id., 108-09. Finally, the court held that "§ 52-212a does not permit a person who has committed fraud to rely on a stipulated judgment to shelter gains that were acquired improperly." Id., 109. Thus, the court held that "[o]ur case law on [ § 52-212a] recognizes that, in some situations, the principle of protection of the finality of judgments must give way to the principle of fairness and equity." Id. That same principle was followed in Connecticut Savings Bank v. Obenauf, 59 Conn.App. 351, 758 A.2d 363 (2000), where the Appellate Court held that, despite the passage of seven years since judgment was entered, the trial court's denial of a motion to reopen a case was erroneous because the original judgment was "facially inconsistent with the complaint" and thus, "must be corrected on the basis of equitable considerations." Id., 355, citing Altberg v. Paul Kovacs Tire Shop, Inc., 31 Conn.App. 634, 640, 626 A.2d 804 (1993).
The trial court's denial was presumably because the defendant failed to allege facts showing that the judgment was the result of fraud, accident, mistake or clerical error. Connecticut Savings Bank v. Obenauf, supra, 59 Conn.App. 353.
In passing P.A. 09-44, the legislature allowed the claims commissioner to reexamine and change earlier decisions — such as this case — as long as the claim had not been submitted to the General Assembly. Moreover, the legislature stated that it would be "[e]ffective from passage [May 20, 2009] and applicable to claims filed prior to, on or after said date." (Emphasis added.) It is a well known tenet of statutory construction that "[t]he legislature is always presumed to be aware of all existing statutes and the effect that its action or nonaction will have on any of them." Wiseman v. Armstrong, 269 Conn. 802, 822, 850 A.2d 114 (2004). Thus, the legislature is presumed to have been aware of the effect of P.A. 09-44 on § 52-212a's "unless otherwise provided by law" exception. If this court were to decide otherwise, then surely it would be ignoring that intent to hold that the "unless otherwise provided by law" exception does not apply to this situation; in fact, it clearly applies. This court finds that the legislature's passage of the law allowing the claims commissioner to vacate his prior dismissal and allow the plaintiff's claim falls into the "unless otherwise provided by law" exception of § 52-212a.
The state argues that the Appellate Court's decision in Tirozzi v. Shelby Ins. Co., 50 Conn.App. 680, 719 A.2d 62, cert. denied, 247 Conn. 945, 723 A.2d 323 (1998), is instructive on this issue. In Tirozzi, after the trial court granted a motion to strike, the plaintiff neither repleaded or appealed the judgment. Id., 682. The General Assembly then passed legislation that would have authorized the earlier case, and the Supreme Court found the legislation to be retroactive. See id., 683. The plaintiff then sued again, pursuant to the accidental failure of suit statute, General Statutes § 52-592, but the Appellate Court held that the suit was barred by the doctrine of res judicata. See id., 688. The state maintains that the ruling of Tirozzi, rejecting the subsequent amendment to the law as grounds for a new cause of action, controls here. However, the Tirozzi court was concerned with res judicata issues and is therefore distinguishable and not controlling for the present case which is, of course, on appeal.
C
The state finally claims that P.A. 09-44 violates article first, § 1, of the constitution of Connecticut because it constitutes an exclusive public emolument or privilege for the plaintiff. "The broad provision in § 1 of article third of our constitution which vests the legislative power in the General Assembly is subject to the limitation that an act which serves no other purpose than individual gain or profit goes beyond the power of that body to enact and is necessarily void . . . That is not to say that, if an act serves a proper public purpose, the fact that it incidentally confers a direct benefit upon some individual or individuals renders it invalid." (Citation omitted.) Lyman v. Adorno, 133 Conn. 511, 515-16, 52 A.2d 702 (1947). The plaintiff argues that not only do the claims commissioner's actions not constitute a legislative act of the General Assembly, but that the authorization in the new act does not involve a private preference.
See footnote 5.
Taking the plaintiff's latter argument first, this court certainly notes that the plaintiff benefits from the legislature's grant to the claims commissioner the authority to revisit a prior ruling, but nevertheless, finds that there is absolutely no way the state can honestly argue that the legislation only benefits the plaintiff. The legislation appears to do no more than formalize and authorize the past practice of the claims commissioner (which this court previously noted seemed at first glance to be "reasonable and logical," but held invalid because it did not have statutory authorization) to which he applied to many claimants.
See Nelson v. Dettmer, Superior Court, complex litigation docket at Hartford, Docket No. X07 CV 07 5012152 (November 13, 2008, Berger, J.) ( 46 Conn. L. Rptr. 669) ( Nelson I).
In his decision, the claims commissioner stated that he "has frequently considered claimant requests to revisit dismissals entered for failing to prosecute and has vacated orders of dismissal when justice and equity requires such action." (Internal quotation marks omitted.) See Nelson I, supra, 46 Conn. L. Rptr. 669.
"To prevail under article first, § 1, of our constitution, the state must demonstrate that the sole objective of the General Assembly is to grant personal gain or advantage to an individual . . . If, however, an enactment serves a legitimate public purpose, then it will withstand a challenge under article first, § 1." (Citation omitted; internal quotation marks omitted.) Chotkowski v. State, 240 Conn. 246, 257, 690 A.2d 368 (1997). "The scope of our review as to whether an enactment serves a public purpose is limited. [W]hat constitutes a public purpose is primarily a question for the legislature, and its determination should not be reversed by the court unless it is manifestly and palpably incorrect . . . [I]f we can discern any conceivable justification for [the] challenged legislation from the public viewpoint . . . we are bound to uphold it against a constitutional challenge predicated on article first, § 1." (Citations omitted; internal quotation marks omitted.) Id., 259.
It is true, that in Chotkowski, the court found that one such public purpose is to remedy an injustice done by the state, and such benefit to a private individual would be deemed incidental to correcting the injustice. See id., 260. The state argues that this legislative act should be viewed solely as a remedy to a procedural default by the plaintiff and stresses that our courts have held that a legislative act that remedies such procedural defaults, for which the state is not responsible, violates this constitutional prohibition. See id., 260 n. 18 ("we have consistently held that legislation seeking to remedy a procedural default for which the state is not responsible does not serve a public purpose and, accordingly, runs afoul of article first, § 1, of the state constitution").
The Chotkowski case, together with the other cases cited by the state, including Lagassey v. State, 268 Conn. 723, 846 A.2d 831 (2004), and Merly v. State, 211 Conn. 199, 558 A.2d 977 (1989), concern failures to timely institute a matter within the limits set forth in General Statutes § 4-148(a) through no fault of the state, and thus no public purpose could be discerned in granting the individual claimants the ability to file suit. In this case, the plaintiffs had met that limitation; there was no specific authorization that pertained just to them. Yet, that principle is not controlling here for a more important reason: the legislation has a more universal application as it simply authorizes the claims commissioner to apply and use just and equitable considerations (that he utilized for other applicants) in connection with pre-hearing orders. It allows him to manage a docket of cases in the same manner that a court manages cases — it allows discretion where it is needed to move the cases to resolution. There is thus a clear distinction between this situation and that in the above mentioned cases where the act entitled a particular claimant to submit a claim after the initial statute of limitations had expired. See, e.g., Perry v. Public Defenders Services Commission, Superior Court, judicial district of Fairfield, Docket No. CV 01 0386523 (August 8, 2002, Gallagher, J.) ( 33 Conn. L. Rptr. 47) ("The present case, however, does not implicate the time bar contained in § 4-148[a], nor does it involve a special act pursuant to § 4-148[b] to overcome that time bar. In the present case, the court is not dealing with a situation where, absent the special act, Perry's claim would be barred ab initio by § 4-148[a] due to untimeliness — Perry's Notice of Claim to the claims commissioner was timely filed — and the special act here did not broaden Perry's individual rights by extending or waiving a time limitation that must be applied uniformly to all claimants . . . Therefore, the legislature did not create a preference or grant an advantage to Perry") (citation omitted; internal quotation marks omitted).
General Statutes § 4-148 provides:
(a) Except as provided in subsection (b) of this section, no claim shall be presented under this chapter but within one year after it accrues. Claims for injury to person or damage to property shall be deemed to accrue on the date when the damage or injury is sustained or discovered or in the exercise of reasonable care should have been discovered, provided no claim shall be presented more than three years from the date of the act or event complained of.
(b) The General Assembly may, by special act, authorize a person to present a claim to the Claims Commissioner after the time limitations set forth in subsection (a) of this section have expired if it deems such authorization to be just and equitable and makes an express finding that such authorization is supported by compelling equitable circumstances and would serve a public purpose. Such finding shall not be subject to review by the Superior Court.
(c) No claim cognizable by the Claims Commissioner shall be presented against the state except under the provisions of this chapter. Except as provided in section 4-156, no claim once considered by the Claims Commissioner, by the General Assembly or in a judicial proceeding shall again be presented against the state in any manner.
This court is well aware that the state has vociferously argued that the inaction by the plaintiff's prior counsel cannot serve as the basis for an equitable action by the claims commissioner as the plaintiff is bound by the acts of her attorneys. See, e.g., Woodruff v. Riley, 78 Conn.App. 466, 471, 827 A.2d 743 ("[n]egligence of a party or his counsel is insufficient for purposes of § 52-212 to set aside a default judgment"), cert. denied, 266 Conn. 922, 835 A.2d 474 (2003). Indeed, this court noted as much in its November 2008 decision. See Nelson I, supra, 46 Conn. L. Rptr. 669. Ultimately, however, the discretionary decision of the claims commissioner on such a matter is not subject to review by this court. See D'Eramo v. Smith, 273 Conn. 610, 618-19, 872 A.2d 408 (2005).
The plaintiff also argues that the constitutional prohibition does not apply because the acts of the claims commissioner do not constitute laws. Suffice it to say that the claims commissioner performs a legislative function; D'Eramo v. Smith, 273 Conn. 610, 618, 872 A.2d 408 (2005) ("[t]he commissioner of claim performs a legislative function directly reviewable only by the General Assembly"); and his acts, in that capacity, are certainly subject to our constitution. See Lyman v. Adorno, supra, 133 Conn. 515-16 (actions of General Assembly are subject to constitutional limitations).
D
In Esposito v. Simkins Industries, Inc., 286 Conn. 319, 327, 943 A.2d 456 (2008), the court noted that "[w]hen construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature . . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply . . . In seeking to determine that meaning, General Statutes § 1-2z directs us to first consider 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 . . . When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter . . ." (Internal quotation marks omitted.)
The state argues that this court should not vacate its decision because the new legislation will lead to absurd results and raises various imaginary horrible scenarios that include the claims commissioner revisiting a claim even "ten years later" or vacating a decision allowing suit even after suit was filed. It argues that the General Assembly's jurisdiction is limited to the statutory twenty-day period after a decision is issued but conceptually, the claims commissioner would not be limited at all because a dismissal is never submitted to the General Assembly. However, without waiving its other arguments, it does concede that the new legislation could be interpreted to allow the claims commissioner to, for a limited period during the time between decision and submission to the General Assembly where a request to review was filed, reconsider a decision. Nevertheless, because no request for review was filed by the plaintiff, the state argues that this limited application does not apply in this case.
The plaintiff maintains that in unanimously passing this legislation, the legislature was simply correcting a void in chapter 53 of the General Statutes, § 4-141 et seq. Not surprisingly, she takes the statute at face value, without reading into it any hypothetical possibilities. Hence, her interpretation is plain and straightforward: the act allows the claims commissioner to revisit and perhaps vacate a prior decision as long as the claim has not been submitted to the legislature. The plaintiff further argues that there is nothing in the new legislation indicating that this new authority only applies to the limited situation in which a request to review was filed. Indeed, the act only states that "the Claims Commissioner may . . . vacate the decision . . . and undertake such further proceedings . . . as the Claims Commissioner may, in his or her discretion, deem appropriate."
See 52 H.R. Proc., Pt. 11, 2009 Sess., pp. 3305-06; 52 S. Proc., Pt. 5, 2009 Sess., pp. 1657, 1659.
As noted in Nelson I, supra, 46 Conn. L. Rptr. 669, the claims commissioner does have the power to rehear a matter, upon the discovery of new evidence, pursuant to General Statutes § 4-156. Section 4-156, like the act at issue, contains no time limitation. Accordingly, this court declines to read such a limitation into the act. See AvalonBay Communities, Inc. v. Zoning Commission, 87 Conn.App. 537, 559, 867 A.2d 37 ("Absent such language by the legislature, this court cannot engraft amendments into the statutory language . . . As [our Supreme Court has] stated in numerous other cases, it is not the province of a court to supply what the legislature chose to omit. The legislature is supreme in the area of legislation, and the courts must apply statutory enactments according to their plain terms"), aff'd, 280 Conn. 405, 908 A.2d 1033 (2005). As such, this court concludes that based on the text of the act and its relationship to other statutes, P.A. 09-44 provides that the claims commissioner may vacate his earlier decision at any time prior to submission to the General Assembly and applies to the present case.
Alternatively, the plaintiff argues that if the language is ambiguous, then extratextual evidence is indeed allowed. In that event, the plaintiff proffers testimony before the Judiciary Committee in which the practice of the claims commissioner in his decision to reopen was read into the record, and this specific case was discussed. See Conn. Joint Standing Committee Hearings, Judiciary, Pt. 16, 2009 Sess., pp. 5112 ("[T]he claims commissioner has frequently considered claimant requests to revisit dismissals entered for failure to prosecute, and vacated orders of dismissal when justice and equity requires such action. The claims commissioner retains jurisdiction and considers such requests until such time as a claim is submitted to the General Assembly Public Hearings"). Susan Birk, Glen Nelson, and their counsel were the only people testifying for the passage of the bill. See Conn. Joint Standing Committee Hearings, supra, pp. 5109-18. After requesting a copy of this court's decision, Senator Kissel stated: "Okay. Because I want to make sure that, if we do have the desire to address this, that we don't miss anything that may have been articulated in that decision." See Conn. Joint Standing Committee Hearings, supra, p. 5114. It is clear that this legislation was passed in response to this court's earlier decision and thus from this alternative perspective, the legislative policy seems clear and instructive.
In the public hearings, Susan Birk is referred to as "Sue Burke-Nelson." See Conn. Joint Standing Committee Hearings, supra, pp. 5109-18. For purposes of consistency, this court uses Susan Birk throughout.9
The state has proffered a second argument precluding this court from utilizing extratextual evidence based on the Supreme Court's decision in Envirotest Systems Corp. v. Commissioner of Motor Vehicles, 293 Conn. 382, 391, 978 A.2d 49 (2009) ("a conclusion that the statutory language is ambiguous with respect to the inference ends the inquiry, and consideration of extratextual sources is unwarranted"). As noted by the plaintiff, the new legislation itself does not purport to waive sovereign immunity, and thus this case is inapplicable.
Regardless then of which analysis is used, for the above reasons, this court disagrees with the state's position that P.A. 09-44 does not apply to this situation. Accordingly, this court grants the plaintiff's motion and sets aside its November 13, 2008 [ 46 Conn. L. Rptr. 669] and February 11, 2009 [ 47 Conn. L. Rptr. 218] decisions granting summary judgment for the state.