CHOTKOWSKI v. STATE

PALMER, J.

This appeal marks the parties' third visit to this court in connection with litigation spanning three decades and arising out of a claim by the plaintiff, Ludmil A. Chotkowski, that the defendant, the state of Connecticut, improperly reduced his salary while he was employed at the state Veterans' Home and Hospital over twenty years ago. The principal issues raised by this appeal are: (1) whether a special act of the legislature; Spec. Acts 1991, No. 91-8; authorizing the plaintiff to present a claim to the claims commissioner requesting permission to bring an action against the state after the expiration of the limitation period applicable to his claim, constitutes an "exclusive public emolument" prohibited by article first, § 1, of the Connecticut constitution; and (2) if not, whether the trial court properly rejected the plaintiff's claims for breach of express contract, breach of implied contract and promissory estoppel. The plaintiff commenced this action after the claims commissioner, acting pursuant to the authority conferred upon him by No. 91-8 of the 1991 Special Acts (S.A. 91-8), granted the plaintiff permission to sue the state. At trial, the state claimed that S.A. 91-8 violates article first, § 1, of the state constitution and, consequently, that the claims commissioner lacked jurisdiction to entertain the plaintiff's request for permission to sue the state. The state further maintained that even if S.A. 91-8 satisfies constitutional requirements, the plaintiff had failed to establish that he was entitled to relief under any of his claims. The trial court rejected the state's constitutional argument, but rendered judgment for the state on the ground that the plaintiff had failed to prove his claims. The plaintiff appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We affirm the judgment of the trial court.

Special Acts 1991, No. 91-8, entitled "An Act Concerning the Claim Against the State of Ludmil Chotkowski," provides: "Be it enacted by the Senate and House of Representatives in General Assembly convened:
"(a) Notwithstanding the failure to file a proper notice of a claim against the state of Connecticut with the clerk of the office of the claims commissioner, as required by section 4-147 of the general statutes, within the time specified by section 4-148 of the general statutes, and notwithstanding the provisions of subsection (b) of section 4-148 of the general statutes barring the presentment of a claim once considered by the claims commissioner, by the general assembly or in a judicial proceeding, Ludmil Chotkowski is authorized to present his claim against the state to the claims commissioner, provided he files a notice of such claim with the clerk of the office of the claims commissioner in accordance with section 4-147 not later than October 1, 1991.
"(b) The general assembly finds that: In 1975 Ludmil Chotkowski was employed by the state as a physician at the Rocky Hill Veterans' Home and Hospital; that in 1975 he received notice that his job title would be changed and his salary would be reduced; that Ludmil Chotkowski in a letter dated May 20, 1975 wrote to the department of personnel and administration to request the `opportunity of appealing this decision before it should become final'; that the commissioner of personnel and administration advised Ludmil Chotkowski in a letter dated June 3, 1975 that `there is no existing statute or regulation which would permit such an appeal, either to me or any other appropriate body'; that subsequently in 1975 Ludmil Chotkowski's job title was changed and his salary was reduced; and that the preceding findings were not contradicted by any testimony on the record at legislative public hearings held on March 14, 1983, March 29, 1985, and March 11, 1991. The general assembly therefore finds that Ludmil Chotkowski failed to timely file a notice of a claim against the state with the claims commissioner because he was misinformed by a state official and was misled by such official into believing that he had no right of redress against the state for the damages he allegedly suffered. The general assembly further finds that it would be just and equitable to authorize Ludmil Chotkowski to present his claim against the state to the claims commissioner, that there are compelling equitable circumstances to support such authorization and that such authorization would serve a public purpose.
"(c) The state shall be barred from setting up the failure to comply with the provisions of sections 4-147 and 4-148 of the general statutes, from denying that notice of the claim was properly and timely given pursuant to sections 4-147 and 4-148 of the general statutes and from setting up the fact that the claim had once been considered by the claims commissioner, by the general assembly or in a judicial proceeding as defenses to such claim."

Article first, § 1, of the Connecticut constitution 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."

The following facts and procedural history are relevant to this appeal. In November, 1969, the plaintiff, a physician, left his private medical practice to accept an appointment as a "special assistant" at the state Veterans' Home and Hospital in Rocky Hill. In February, 1975, the position of special assistant was eliminated, and the plaintiff was reclassified as a "professional specialist" with no reduction in pay. The plaintiff then received notice of his proposed reclassification to "chief of medicine." Through correspondence with various state administrators, the plaintiff protested his reclassification and corresponding salary reduction. On May 20, 1975, he forwarded a letter to the state department of personnel and administration requesting the "opportunity of appealing this decision before it should become final." The commissioner of personnel and administration, Frederic Rossomando, responded by letter dated June 3, 1975 (Rossomando letter), in which, contrary to applicable law, he stated: "I am advised that there is no existing statute or regulation which would permit such an appeal, either to me or any other appropriate body." Thereafter, on June 6, 1975, the plaintiff was reclassified to the position of "chief of medicine," and his salary was reduced by $303.64 biweekly.

On April 8, 1976, nearly one year later, the plaintiff's employment was terminated as a result of his continued conflicts with administration officials over his salary reduction. The plaintiff appealed the termination to the state personnel appeal board (board), which dismissed the appeal, concluding that the plaintiff was not entitled to review of his claims because he was not a "permanent employee holding a position in the classified service" within the meaning of General Statutes (Rev. to 1975) § 5-202 (a). The plaintiff's administrative appeal of the board's decision was sustained by the trial court, Pickett, J., on the ground that the plaintiff was a permanent employee in the classified state service for purposes of § 5-202 (a). The board appealed to this court, and we affirmed the judgment of the trial court. Chotkowski v. Connecticut Personnel Appeal Board, 176 Conn. 1, 404 A.2d 868 (1978). The parties eventually agreed to a settlement of the plaintiff's employment termination claim.

Shortly thereafter, on May 7, 1976, the plaintiff was rehired by the state as an "internist" at the Connecticut Valley Hospital, a position he held until his retirement in June, 1986.

General Statutes (Rev. to 1975) § 5-202 (a) provided in relevant part that "[a]ny permanent employee holding a position in the classified service who is demoted, suspended or dismissed, or is individually aggrieved as a result of alleged discrimination, unfair treatment or unsafe or unhealthy working conditions or interpretation and application of state personnel regulations . . . may obtain a review of such action or alleged grievance by presenting a written appeal to the personnel appeal board. . . ." Section 5-202 (a) has since been amended and the personnel appeal board replaced by the employees' review board. See General Statutes § 5-201 et seq.

After settling his employment termination claim, the plaintiff filed a notice of claim with the claims commissioner under General Statutes § 4-147 requesting permission to sue the state for lost wages based upon the allegedly improper reclassification and salary reduction. The claims commissioner rejected the plaintiff's claim, concluding that it was barred by the one year limitation for presenting claims against the state prescribed by General Statutes (Rev. to 1979) § 4-148 (a).

General Statutes § 4-147 provides in relevant part: "Any person wishing to present a claim against the state shall file with the clerk of the Office of Claims Commissioner a notice of claim, in duplicate, containing the following information: (1) The name and address of the claimant; the name and address of his principal, if the claimant is acting in a representative capacity, and the name and address of his attorney, if the claimant is so represented; (2) a concise statement of the basis of the claim, including the date, time, place and circumstances of the act or event complained of; (3) a statement of the amount requested, and (4) a request for permission to sue the state, if such permission is sought. . . ."

General Statutes (Rev. to 1979) § 4-148 (a) provides: "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."

Thereafter, the legislature, at the plaintiff's urging, passed No. 85-24 of the 1985 Special Acts (S.A. 85-24), which authorized the plaintiff to prosecute his claim against the state despite his failure to comply with the requirements of § 4-148 (a). The plaintiff then renewed his claim to the claims commissioner, who granted the plaintiff permission to sue the state in accordance with General Statutes (Rev. to 1985) § 4-160 (a).

Special Acts 1985, No. 85-24, entitled "An Act Validating the Filing of Notice of the Claim of Ludmil Chotkowski with the Claims Commissioner," provides: "Be it enacted by the Senate and House of Representatives in General Assembly convened:
"The claim of Ludmil Chotkowski, filed against the state of Connecticut with the claims commissioner, otherwise valid except that proper notice of said claim was not filed with the clerk of the office of the claims commissioner as required by section 4-147 of the general statutes and within the time specified by section 4-148 of the general statutes, is validated and declared sufficient to permit Ludmil Chotkowski to maintain and prosecute his claim against the state notwithstanding the lack of proper notice. The state shall be barred from setting up the failure to comply with the provisions of sections 4-147 and 4-148 of the general statutes with respect to the claim and shall also be barred from denying that notice of the claim was properly and timely given pursuant to sections 4-147 and 4-148 of the general statutes."

General Statutes (Rev. to 1985) § 4-160 provides in relevant part: "Authorization of actions against the state. (a) When the claims commissioner deems it just and equitable, he may authorize suit against the state on any claim which, in his opinion, presents an issue of law or fact under which the state, were it a private person, could be liable. In each such action the claimant shall allege such authorization and the date on which it was granted. The state waives its immunity from liability and from suit in each such action and waives all defenses which might arise from the eleemosynary or governmental nature of the activity complained of. The rights and liability of the state in each such action shall be coextensive with and shall equal the rights and liability of private persons in like circumstances. . . ."

The plaintiff subsequently commenced an action against the state alleging breach of contract and promissory estoppel. The trial court, O'Neill, J., granted the state's motion for summary judgment on the ground that the plaintiff, as a permanent employee in the classified state service, enjoyed only statutory, and not contractual, employment rights. The plaintiff appealed to this court and we held that S.A. 85-24 constituted an "exclusive public emolument" prohibited by article first, § 1, of the state constitution. Accordingly, we remanded the case to the trial court with direction to dismiss the plaintiff's action for lack of jurisdiction. Chotkowski v. State, 213 Conn. 13, 566 A.2d 419 (1989) ( Chotkowski II).

In light of our holding that the claims commissioner lacked jurisdiction over the plaintiff's claim due to the unconstitutionality of S.A. 85-24, we concluded that "the summary judgment adjudicating the merits of the plaintiff's action must be set aside." Chotkowski II, supra, 213 Conn. 19. We, therefore, did not consider the merits of the plaintiff's claims against the state.

The legislature then enacted No. 90-284 of the 1990 Public Acts (P.A. 90-284), now codified at § 4-148 (b), which provides that the legislature, by special act, may excuse a claimant's failure to file a timely notice with the claims commissioner provided that the legislature "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." Section 4-148 (b) also purports to ensure that the legislature's "finding shall not be subject to review by the superior court."

General Statutes § 4-148 (b) provides: "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."

We note that the circumstances surrounding the plaintiff's case apparently provided the impetus for the enactment of P.A. 90-284. The plaintiff himself testified before the judiciary committee in support of the bill; Conn. Joint Standing Committee Hearings, Judiciary, Pt. 4, 1990 Sess., pp. 1234-36, remarks of Ludmil A. Chotkowski; and members of the legislature made express reference to the plaintiff's case in urging passage of the proposed legislation. See id., pp. 1103-1105, remarks of Senator A. Cynthia Matthews; 33 H.R. Proc., Pt. 17, 1990 Sess., p. 5817, remarks of Representative Richard D. Tulisano.

Acting under the aegis of § 4-148 (b), the legislature, again at the request of the plaintiff, enacted S.A. 91-8, which, like S.A. 85-24, authorizes the plaintiff to present his claim to the claims commissioner notwithstanding his lack of compliance with § 4-148 (a). Unlike S.A. 85-24, however, S.A. 91-8 is predicated upon an express legislative finding that the plaintiff "failed to timely file a notice of a claim against the state with the claims commissioner because he was misinformed by a state official and was misled by such official into believing that he had no right of redress against the state for the damages he allegedly suffered," and, further, "that there are compelling equitable circumstances to support such authorization and that such authorization would serve a public purpose." See footnote 1. The plaintiff, upon passage of S.A. 91-8, renewed his claim with the claims commissioner, who again granted him permission to bring an action against the state.

The plaintiff then commenced this suit alleging breach of express contract, breach of implied contract and promissory estoppel. The state moved to dismiss the action for lack of jurisdiction on the ground that S.A. 91-8 violates article first, § 1, of the state constitution. The trial court, Stengel, J., denied the state's motion. The state thereafter filed a motion for summary judgment in which it renewed its constitutional challenge to S.A. 91-8 and, in addition, claimed that (1) the plaintiff's request for permission to sue the state was barred by § 4-148 (c), and (2) the plaintiff had failed to state a legally sufficient cause of action because his employment rights were statutory, rather than contractual, in nature. The trial court, Fineberg, J., denied the state's motion on the ground that there were disputed factual issues material to the plaintiff's claims; see Practice Book § 378 et seq.; see also Doty v. Mucci, 238 Conn. 800, 805, 679 A.2d 945 (1996); and a trial to the court ensued. At the conclusion of the trial, the court, Fineberg, J., rendered judgment for the state, concluding that the plaintiff had failed to establish that his employment with the state gave rise to any contractual rights and, further, that he had failed to prove the elements of his promissory estoppel claim.

In the first count of his complaint, the plaintiff alleges that two documents he received from the state personnel department in November, 1969, notifying him of his appointment and salary as a "special assistant" at the Veterans' Home and Hospital, constituted an express contract. In count two of the complaint, which sets forth a claim of promissory estoppel, the plaintiff alleges that several state officials represented that he would be appointed to the position of "special assistant" at a salary that "would be subject to future increases approximating increases for others in state employment." The plaintiff further alleges in count two that he left the private practice of medicine and accepted an appointment with the state in reliance on those representations. In the third count of the complaint, the plaintiff claims that "[t]he circumstances under which [he] was offered employment with the [state] and the specific acts and conduct of [the state's] agents in promising to pay [him] at a specific rate and subject to projected increases constituted an agreement resulting from an implied contract between [him and the state]." The plaintiff asserts that the state breached a duty to him under each of the three counts by reducing his rate of pay commencing on June 6, 1975, and that he is entitled to damages from that date until his retirement from state service in 1986. See footnote 3.

The state raised eight special defenses to the plaintiff's action: (1) failure to state a claim upon which relief can be granted; (2) laches; (3) statute of limitations; (4) res judicata; (5) sovereign immunity; (6) unconstitutionality of § 4-148 (b); (7) unconstitutionality of S.A. 91-8; and (8) release. The trial court rejected each of the state's special defenses except its first special defense, upon which the court did not expressly rule. Furthermore, although it rendered judgment against the plaintiff on each count of the complaint, the court found that the plaintiff would have been entitled to damages of $6680.08 had he been able to establish that the state had improperly reduced his pay.

On appeal, the plaintiff claims that the trial court improperly determined that he had failed to establish that he was entitled to relief under each of his claims. The state contends that the trial court improperly rejected its claim that S.A. 91-8 violates article first, § 1, of the state constitution and that the claims commissioner did not have jurisdiction to entertain the plaintiff's claim requesting permission to sue the state. The state further contends that even if S.A. 91-8 is constitutional, the trial court lacked jurisdiction over the plaintiff's action because the claim that he filed with the claims commissioner was barred by both General Statutes § 4-142 and General Statutes § 4-148 (c). Finally, the state maintains that even if the claims commissioner had jurisdiction to consider the plaintiff's request for permission to bring this action, the trial court properly concluded that the plaintiff had failed to establish that he was entitled to relief under any of his claims. Because we agree with the trial court's conclusions, we affirm the judgment of the trial court.

The plaintiff also contends that the trial court improperly calculated the amount of damages to which he would be entitled if he had established that the state was liable for his lost wages. See footnote 13. We do not reach this issue, however, because we conclude that the trial court properly rejected each of the plaintiff's claims.

General Statutes § 4-142 provides: "Claims commissioner. Excepted claims. There shall be a claims commissioner who shall hear and determine all claims against the state except: (1) Claims for the periodic payment of disability, pension, retirement or other employment benefits; (2) claims upon which suit otherwise is authorized by law; (3) claims for which an administrative hearing procedure otherwise is established by law; (4) requests by political subdivisions of the state for the payment of grants in lieu of taxes, and (5) claims for the refund of taxes."

General Statutes § 4-148 (c) provides: "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."

The plaintiff argues that the state is foreclosed from raising these claims because it failed to raise them in a cross appeal; see Practice Book § 4005; or enumerate them in a preliminary statement of the issues. See Practice Book § 4013(a) (1). The plaintiff's claim is without merit. First, the state was not aggrieved by the trial court's judgment and, therefore, it could not properly file a cross appeal. Second, we may refuse to consider an issue not contained in a preliminary statement of issues only where the failure to do so prejudices the opposing party. Practice Book § 4013(a)(1). In the present case, the plaintiff, who had ample opportunity to respond to the state's claims in his reply brief, has failed to demonstrate that he was in any way prejudiced by the state's failure to include these claims in its preliminary statement of the issues.

I

Before turning to the plaintiff's contention that the trial court improperly rejected his claims, we must first consider the state's claim that the trial court lacked jurisdiction over the plaintiff's action. See Cannata v. Dept. of Environmental Protection, 239 Conn. 124, 134, 680 A.2d 1329 (1996); Figueroa v. C S Ball Bearing, 237 Conn. 1, 4, 675 A.2d 845 (1996). The state's principal contention is that S.A. 91-8 violates the prohibition against "exclusive public emoluments or privileges from the community" contained in article first, § 1, of the Connecticut constitution and, consequently, that the claims commissioner lacked authority to entertain the plaintiff's request for permission to sue the state. The trial court concluded that S.A. 91-8 serves a valid public purpose and, therefore, that it does not run afoul of article first, § 1. We agree with the trial court.

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." State ex rel. Higgins v. Civil Service Commission, 139 Conn. 102, 106, 90 A.2d 862 (1952). If, however, an enactment serves a legitimate public purpose, then it will withstand a challenge under article first, § 1. Serrano v. Aetna Ins. Co., 233 Conn. 437, 458-59, 664 A.2d 279 (1995); Tough v. Ives, 162 Conn. 274, 292, 294 A.2d 67 (1972). Moreover, we conduct our review of S.A. 91-8 mindful that "legislative enactments carry with them a strong presumption of constitutionality, and that a party challenging the constitutionality of a validly enacted statute bears the heavy burden of proving the statute unconstitutional beyond a reasonable doubt." Beccia v. Waterbury, 192 Conn. 127, 133, 470 A.2d 1202 (1984); see also Faraci v. Connecticut Light Power Co., 211 Conn. 166, 168, 558 A.2d 234 (1989).

The plaintiff claims that the trial court lacked authority to consider the propriety of the legislative finding that S.A. 91-8 serves a public purpose because such review is barred by § 4-148 (b), which provides in pertinent part that "[s]uch finding shall not be subject to review by the superior court." See footnote 10. The plaintiff maintains that this legislative prohibition against judicial review is valid because § 4-148 (b) deals with the doctrine of sovereign immunity, and "[i]t is a matter for the legislature, not this court, to determine when our state's sovereign immunity should be waived." Struckman v. Burns, 205 Conn. 542, 558, 534 A.2d 888 (1987). We disagree. Because an enactment must serve a valid public purpose in order to avoid the prohibition against the granting of "exclusive public emoluments and privileges" contained in article first, § 1, of the state constitution, the determination of whether an enactment serves such a purpose is necessarily one of constitutional magnitude. It is the court's duty to ensure that legislative action falls within constitutional boundaries; Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177-78, 2 L.Ed. 60 (1803); Szarwak v. Warden, 167 Conn. 10, 27, 355 A.2d 49 (1974); even if that action involves a waiver of the immunity from suit enjoyed by the state under the common law. Consequently, the legislature cannot "by mere fiat or finding, make `public' a truly `private' purpose . . . . Its findings and statements about what is or is not `public' cannot be binding upon the court. Lyman v. Adorno, [ 133 Conn. 511, 517, 52 A.2d 702 (1947)]." Wilson v. Connecticut Product Development Corp., 167 Conn. 111, 116 n. 2, 355 A.2d 72 (1974). Accordingly, § 4-148 (b) would be constitutionally infirm to the extent that it were construed to shield from judicial review a legislative determination that its enactment meets the requirements of article first, § 1, of our state constitution.

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." Barnes v. New Haven, 140 Conn. 8, 15, 98 A.2d 523 (1953); see also Wilson v. Connecticut Product Development Corp., supra, 167 Conn. 115-16; Roan v. Connecticut Industrial Building Commission, 150 Conn. 333, 345, 189 A.2d 399 (1963). "[W]e are not to assess [the constitutionality of an act] in the light of what we think of the wisdom and discernment of the law-making body in the particular instance. Rather we are bound to approach the question from the standpoint of upholding the legislation as a valid enactment unless there is no reasonable ground upon which it can be sustained." Roan v. Connecticut Industrial Building Commission, supra, 338; see also Warner v. Gabb, 139 Conn. 310, 313, 93 A.2d 487 (1952). Thus, "if there be the least possibility that making the gift will be promotive in any degree of the public welfare, it becomes a question of policy and not of natural justice; and the determination of the legislature is conclusive." Lyman v. Adorno, supra, 133 Conn. 524. In other words, if we can discern "any conceivable justification for [the] challenged legislation from the public viewpoint"; Merly v. State, 211 Conn. 199, 205, 558 A.2d 977 (1989); we are bound to uphold it against a constitutional challenge predicated on article first, § 1.

Although "[w]e have taken a broad view of the legislative goals that may constitute a `public purpose'"; Beccia v. Waterbury, supra, 192 Conn. 134; "[b]ecause the elements of a public purpose vary as much as the circumstance in which the term is appropriate, each case must be determined on its own peculiar facts." Tough v. Ives, supra, 162 Conn. 292. In general, however, we have found "that an act serves a public purpose under article first, § 1, when it promote[s] the welfare of the state . . . or when the principal reason for the appropriation is to benefit the public. . . ." (Citations omitted; internal quotation marks omitted.) Beccia v. Waterbury, supra, 134; Wilson v. Connecticut Product Development Corp., supra, 167 Conn. 117. Furthermore, an enactment will be deemed to serve a valid public purpose, even though it confers a direct benefit upon a particular individual, if it remedies an injustice done to that individual for which the state itself bears responsibility. Sanger v. Bridgeport, 124 Conn. 183, 189, 198 A. 746 (1938); see also Chotkowski II, supra, 213 Conn. 18; Merly v. State, supra, 211 Conn. 213-14; Vecchio v. Sewer Authority, 176 Conn. 497, 506-507, 408 A.2d 254 (1979); Hillier v. East Hartford, 167 Conn. 100, 108-109, 355 A.2d 1 (1974). In such circumstances, the benefit conferred upon a private party by the legislature may be viewed as incidental to the overarching public interest that is served in remedying an injustice caused by the state.

By contrast, 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. See, e.g., Merly v. State, supra, 211 Conn. 214; Vecchio v. Sewer Authority, supra, 176 Conn. 506-507; Hillier v. East Hartford, supra, 167 Conn. 108-109. Thus, legislation cannot survive a constitutional challenge under article first, § 1, if it excuses a party's failure to comply with a statutory notice requirement simply because the noncompliance precludes consideration of the merits of the party's claim. Merly v. State, supra, 214; Vecchio v. Sewer Authority, supra, 506-507; Hillier v. East Hartford, supra, 108-109. As we stated in Chotkowski II, supra, 213 Conn. 18, if a statutory notice requirement "could be set aside for the benefit of a particular person simply because the legislature viewed his claim as meritorious, it would be difficult to justify enforcing [the requirement] to bar any claim . . . from being resolved solely on its merits."

In this case, the legislature, acting on the basis of undisputed testimony detailing the circumstances surrounding the plaintiff's failure to file a claim within the period prescribed by § 4-148 (a); see Conn. Joint Standing Committee Hearings, Judiciary, Pt. 2, 1991 Sess., pp. 610-14; expressly found that the plaintiff had failed to comply with § 4-148 (a) "because he was misinformed by a state official and was misled by such official into believing that he had no right of redress against the state for the damages he allegedly suffered." S.A. 91-8; see footnote 1. The legislature further concluded that the plaintiff's request for special authorization to file a late claim with the claims commissioner was supported by "compelling equitable circumstances" and that "such authorization would serve a public purpose." S.A. 91-8; see footnote 1. These conclusions are supported by the testimony presented to the legislature and, as the trial court determined, by the evidence adduced at trial. We cannot conclude, therefore, that the legislative findings and conclusions are manifestly and palpably incorrect.

The state argues that the legislature could not reasonably have concluded that the plaintiff was warranted in relying on the Rossomando letter and, in any event, that the letter was not misleading because it did not purport to be exhaustive in scope and because it did not expressly indicate that the plaintiff had no remedy before the claims commissioner. As the trial court determined, however, the undisputed facts and reasonable inferences to be drawn therefrom support the express legislative findings and conclusions underlying the enactment of S.A. 91-8. In light of the deference we must accord the legislature in respect to its determination that the challenged legislation serves a public purpose; see Merly v. State, supra, 211 Conn. 205; Roan v. Connecticut Industrial Building Commission, supra, 150 Conn. 338; Lyman v. Adorno, supra, 133 Conn. 524; and because the legislature rationally could have concluded that the plaintiff reasonably relied on the representations contained in the Rossomando letter in failing to seek redress in a timely manner, we must reject the state's claim.

As noted by the plaintiff, the circumstances of this case are similar to those of Sanger v. Bridgeport, supra, 124 Conn. 183, in which we upheld the constitutionality of a special act validating a statutorily defective notice to the city of Bridgeport alleging injuries suffered by the plaintiff due to a defective sidewalk. In Sanger, the plaintiff had "alleged that [the defective notice] was prepared by an assistant to the city clerk of Bridgeport, upon whom the plaintiff relied for its preparation and to whom was given all essential facts which were necessary for a notice sufficient to the requirements of the statute . . . ." Id., 185. In concluding that the challenged legislation did not contravene constitutional requirements, we recognized that there exist "strong equitable grounds for legislative interference" when a government official has caused a procedural default that adversely affects the substantive rights of the party seeking legislative intervention. Id., 189; see also Chotkowski II, supra, 213 Conn. 18. Here, as in Sanger, the challenged special act seeks to remedy an inequity that the legislature rationally concluded had resulted from the plaintiff's reasonable reliance on the misleading conduct of a state official.

Although the state notes that "one commentator has stated that Sanger v. Bridgeport, supra, [ 124 Conn. 183] has `very little vitality' and `may well not be the law in Connecticut today'"; W. Horton, The Connecticut State Constitution: A Reference Guide (1993) p. 40; the state does not argue that Sanger should be overruled. Rather, the state seeks to distinguish Sanger from this case on the ground that Sanger provided a more compelling factual basis for legislative intervention. In light of the legislative finding that the Rossomando letter misled the plaintiff into believing that he had no recourse against the state, we conclude that this case is indistinguishable from Sanger with respect to the factual issue of critical constitutional significance, namely, whether the state caused the procedural default that the legislature sought to remedy. Furthermore, we see no reason to overrule Sanger because we perceive no constitutional infirmity in an enactment that reinstates a claimant's right to seek redress against a governmental entity whose employee was responsible for the claimant's noncompliance with a statutory notice requirement promulgated solely for the benefit of that entity.

The state contends that Chotkowski II disposes of the plaintiff's claim that a valid public purpose is served by allowing the plaintiff to prosecute his claim against the state. The state, however, misconstrues the scope of our decision in Chotkowski II, wherein the plaintiff disputed the state's constitutional challenge to S.A. 85-24 solely on the ground that equity required the enactment of such remedial legislation in light of the promise of permanent employment allegedly made to him by the state. Thus, as we expressly noted in Chotkowski II, "[the plaintiff] does not even claim . . . that the state caused the delay in presenting his claim to the claims commissioner . . . . The only consideration he advances is that the legislature may have intended to recognize an honorary obligation so that substantial justice could be realized. . . . The honorary obligation relied upon by the plaintiff, however, is based wholly upon the asserted merit of his cause of action for breach of contract and does not implicate the delay in filing his claim with the claims commissioner." (Citations omitted; internal quotation marks omitted.) Chotkowski II, supra, 213 Conn. 18.

Similarly, nowhere does the legislative history of S.A. 85-24 indicate that the legislature was apprised of the Rossomando letter or of the plaintiff's failure to file a claim in a timely manner in reliance on the representations contained therein. Indeed, because the testimony in support of S.A. 85-24 focused solely upon the alleged merit of the plaintiff's claim against the state; see Conn. Joint Standing Committee Hearings, Judiciary, Pt. 4, 1985 Sess., pp. 1090-92, 1249; we must presume that the enactment of S.A. 85-24 was predicated on that information. Thus, our conclusion in Chotkowski II that S.A. 85-24 did not serve a public purpose does not preclude a determination that S.A. 91-8 satisfies that constitutional requirement.

We conclude, therefore, that because S.A. 91-8 serves a legitimate public purpose, it does not violate article first, § 1, of the Connecticut constitution. Accordingly, the trial court properly rejected the state's constitutional challenge to S.A. 91-8.

II

We next consider the state's argument that the plaintiff's claim requesting permission to sue the state was barred by § 4-142. See footnote 15. We are not persuaded by this argument.

The claims commissioner has authority to hear all claims against the state except those expressly enumerated in § 4-142. The state first contends that the plaintiff's claim was barred by § 4-142 (1), which excepts from the claims commissioner's jurisdiction "[c]laims for the periodic payment of disability, pension, retirement or other employment benefits." The state further maintains that the plaintiff was entitled to a review of his salary reduction by the personnel appeal board under § 5-202 and, consequently, that consideration of his claim by the claims commissioner was precluded by § 4-142 (3), which bars the claims commissioner's review of "claims for which an administrative hearing procedure otherwise is established by law."

See footnote 4.

The plaintiff's claim that his wages were improperly reduced by the state when he was reclassified to the position of chief of medicine does not fall into either of these two categories limiting the claims commissioner's jurisdiction. With respect to § 4-142 (1), the plaintiff does not claim that he was improperly deprived of a periodic payment of the kind enumerated therein; instead, he seeks lump sum damages for his lost wages. Furthermore, because the plaintiff's action against the state is predicated solely on principles of contract law, it does not appear that the board was authorized under § 5-202 to afford the plaintiff the contract remedy that he seeks. We are not persuaded, therefore, that the plaintiff had an available administrative remedy within the meaning of § 4-142 (3). Accordingly, we agree with the trial court that the plaintiff's claim requesting permission to bring this action against the state was not barred by § 4-142.

Indeed, the Rossomando letter itself indicated that the plaintiff had no administrative recourse with respect to his reclassification to the position of chief of medicine.

III

The state also claims that the plaintiff's request for permission to sue the state was foreclosed by § 4-148 (c), which provides in pertinent part that "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." See footnote 16. We disagree.

As the state maintains, the principle underlying § 4-148 (c) is that of res judicata. That common law doctrine, also known as "claim preclusion, [provides that] a former judgment on a claim, if rendered on the merits, is an absolute bar to a subsequent action on the same claim." (Internal quotation marks omitted.) Delahunty v. Massachusetts Mutual Life Ins. Co., 236 Conn. 582, 589, 674 A.2d 1290 (1996). Although the state concedes that our judgment in Chotkowski II ordering the dismissal of the plaintiff's action did not entail a consideration of the merits of the plaintiff's claim, the state maintains that § 4-148 (c) imposes a broader prohibition against successive claims than does the doctrine of res judicata. Under the interpretation urged by the state, § 4-148 (c) bars a claim against the state if that claim has already been reviewed by the claims commissioner, the legislature or the judiciary whether or not the reviewing body considered the merits of the claim.

Special Act 91-8(c) expressly provides that "[t]he state shall be barred from . . . setting up the fact that the claim had once been considered by the claims commissioner, by the general assembly or in a judicial proceeding as defenses to [the plaintiff's] claim." See footnote 1. The state asserts, however, that this provision is itself an "exclusive public emolument" in violation of article first, § 1, of the state constitution because it is not supported by a public purpose. Because we conclude that § 4-148 (c) does not bar a claim against the state when neither the claims commissioner, the legislature nor the judiciary has ever rejected the claim on its merits, the state's argument is unavailing.

We reject this interpretation for two principal reasons. First, in the absence of any persuasive reason to the contrary, we are not inclined to construe § 4-148 (c) more narrowly than the common law doctrine upon which it is concededly based. Second, under the state's construction of § 4-148 (c), a claimant whose request for permission to sue the state has been rejected as untimely by the claims commissioner would be precluded from seeking a special act of the legislature waiving the applicable limitation period even though that claimant could have established that the filing delay had been caused by the state. We are not persuaded that the legislature intended such a result. See, e.g., State v. Anonymous, 237 Conn. 501, 514-15, 680 A.2d 956 (1996) (law favors sensible and rational construction of statute rather than one leading to difficult and possibly bizarre consequences). Accordingly, we reject the state's argument that § 4-148 (c) bars the claims commissioner from considering the plaintiff's claim.

The legislative history of § 4-148 (c) sheds no light on its intended scope. See Conn. Joint Standing Committee Hearings, Appropriations, Pt. 3, 1959 Sess., pp. 919-25; 8 S. Proc., Pt. 8, 1959 Sess., pp. 4074-78; 8 H.R. Proc., Pt. 12, 1959 Sess., pp. 5366-67; 8 H.R. Proc., Pt. 13, 1959 Sess., pp. 5582-84.

See part I of this opinion. Indeed, under the view espoused by the state, § 4-148 (c) also would have precluded the enactment of S.A. 85-24.

IV

We now turn to the plaintiff's claim that the trial court improperly rendered judgment for the state on the ground that the plaintiff, as a classified state employee, enjoyed only statutory, and not contractual, employment rights. We agree with the trial court's conclusion.

We have previously concluded that state employees do not have contractual employment rights absent a clear and unambiguous expression of legislative intent to the contrary. Pineman v. Oechslin, 195 Conn. 405, 416, 488 A.2d 803 (1985); see also Kinney v. State, 213 Conn. 54, 65 n. 17, 566 A.2d 670 (1989). If this were not the case, "the state would be powerless to reduce the pay or shorten the tenure of any state employee without posing a possible contract clause violation. We do not believe that such a heavy obligation may be imposed upon the state unless the legislature clearly evidences an intent to assume it." Pineman v. Oechslin, supra, 416; see also National R. Passenger Corp. v. Atchison, Topeka Santa Fe Railway Co., 470 U.S. 451, 465-66, 105 S.Ct. 1441, 84 L.Ed.2d 432 (1985) (absent clear indication by legislature to contrary, presumption is that legislation does not create private contractual rights but merely sets policy to be followed until legislature ordains otherwise). Thus, state employees serve by appointment, and "their entitlement to pay and other benefits `must be determined by reference to the statutes and regulations governing [compensation], rather than to ordinary contract principles.'" Kizas v. Webster, 707 F.2d 524, 535 (D.C. Cir. 1983), cert. denied, 464 U.S. 1042, 104 S.Ct. 709, 79 L.Ed.2d 173 (1984), quoting United States v. Larionoff, 431 U.S. 864, 869, 97 S.Ct. 2150, 53 L.Ed.2d 48 (1977). Accordingly, the plaintiff can prevail on his contract claims only if he can establish that the legislature intended to bind the state contractually under the statutory scheme pursuant to which he was appointed. See Pineman v. Oechslin, supra, 416; see also Dodge v. Board of Education, 302 U.S. 74, 78, 58 S.Ct. 98, 82 L.Ed. 57 (1937).

The plaintiff points to nothing in the statutes applicable to classified state employees; see General Statutes (Rev. to 1975) §§ 5-200 through 5-208; or elsewhere in our laws and regulations, to support his claim of contractual entitlement. Because his express and implied contract claims are predicated on the existence of rights that he does not possess, the trial court properly concluded that the plaintiff is not entitled to relief on those counts.

"The [plaintiff's] claim of breach of an implied contract could be read to allege failure to perform duties imposed either by a contract implied in fact or a contract implied in law, also often called quasi-contract." Therrien v. Safeguard Mfg. Co., 180 Conn. 91, 94, 429 A.2d 808 (1980). "A contract implied in fact, like an express contract, depends on actual agreement . . . [and a] contract implied in law requires, as a foundation, that there be an obligation created by law that imposes a duty to perform." Id., 94-95. As the trial court concluded, the plaintiff failed as a matter of law to establish the existence of an implied contract because the applicable statutory scheme contains no suggestion that the legislature intended to enter into any contractual relationship with permanent employees in the classified state service. See Pineman v. Oechslin, supra, 195 Conn. 416.

The trial court also properly determined that the plaintiff could not prevail on his claim of promissory estoppel. "Under our well-established law, any claim of estoppel is predicated on proof of two essential elements: the party against whom estoppel is claimed must do or say something calculated or intended to induce another party to believe that certain facts exist and to act on that belief; and the other party must change its position in reliance on those facts, thereby incurring some injury. . . . It is fundamental that a person who claims an estoppel must show that he has exercised due diligence to know the truth, and that he not only did not know the true state of things but also lacked any reasonably available means of acquiring knowledge." (Citations omitted; internal quotation marks omitted.) Connecticut National Bank v. Voog, 233 Conn. 352, 366, 659 A.2d 172 (1995); see also D'Ulisse-Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 213, 520 A.2d 217 (1987). "In addition, estoppel against a public agency is limited and may be invoked: (1) only with great caution; (2) only when the action in question has been induced by an agent having authority in such matters; and (3) only when special circumstances make it highly inequitable or oppressive not to estop the agency." Kimberly-Clark Corp. v. Dubno, 204 Conn. 137, 148, 527 A.2d 679 (1987). Finally, a claim for promissory estoppel will not lie against the state unless "the party claiming estoppel would be subjected to substantial loss if the public agency were permitted to negate the acts of its agents." Id.

The evidence fully supports the trial court's determination that the plaintiff failed to prove his claim of estoppel. The only statement made by state officials to the plaintiff was that "he would be paid $35,000.00 per year, and . . . that said rate of pay would be subject to future increases." As the trial court found, the facts alleged and proven by the plaintiff were "neither sufficiently promissory nor sufficiently definite" to support the plaintiff's claim. See D'Ulisse-Cupo v. Board of Directors of Notre Dame High School, supra, 202 Conn. 214. Moreover, the plaintiff offered no proof that the state officials were empowered to bind the state; see, e.g., Kimberly-Clark Corp. v. Dubno, supra, 204 Conn. 148; or that the plaintiff exercised due diligence in seeking to ascertain whether they were authorized to do so. See Connecticut National Bank v. Voog, supra, 233 Conn. 366. Because the plaintiff failed to establish the essential elements of his claim of promissory estoppel, the trial court properly rendered judgment for the state with respect to that count.

The plaintiff contends that his rights vis-a-vis the state are not limited to the statutory rights that he possessed in 1975 because, he claims, § 4-160 places the state in the position of a private person and, therefore, allows any claims that could be brought against a private person to be brought against the state, including claims for breach of an employment contract. It is true that § 4-160 provides for the waiver of the state's sovereign immunity, thus making the state's rights and liability "coextensive with and equal to those of a private person in like circumstances." Sullivan v. State, 189 Conn. 550, 557, 457 A.2d 304 (1983). The sole purpose of § 4-160, however, is to remove the bar of sovereign immunity when the claims commissioner determines that it would be "just and equitable" to permit a claimant to seek redress against the state. See footnote 8. Contrary to the plaintiff's claim, there is no indication that the legislature, in empowering the claims commissioner to waive the state's immunity from suit, intended to enhance or otherwise to modify a plaintiff's substantive rights. Consequently, § 4-160 cannot be construed to alter the terms and conditions of the plaintiff's state employment or otherwise affect the fundamental nature of the parties' relationship.

In espousing the view that § 4-160 alters the substantive employment rights of the parties, the dissent ignores the plain language of § 4-160 (a), which provides that the "liability of the state in each such action shall be coextensive with and shall equal the rights and liability of private persons in like circumstances." (Emphasis added.) It cannot reasonably be maintained that the circumstances underlying the parties' statutorily defined employment relationship are like those underlying a private employment relationship founded on contract. Furthermore, none of the federal or state cases cited by the dissent supports the contention that § 4-160 (a) was intended to expand or to enhance the substantive rights of a claimant who obtains permission to sue the state under that statute. Finally, contrary to the conclusion of the dissent, the pertinent legislative history provides no indication that the legislature, in enacting § 4-160, intended to expand the substantive rights of claimants requesting permission to sue the state.