author: Norcott, J.

text:
    City of Groton v. Yankee Gas Services Company
    (14458)
    Peters, C. J., Callahan, Borden, Berdon and Norcott, Js.

      Argued September 25, 1992
    decision released February 23, 1993

      Steven R. Hum/phrey, with whom were David W. Bogan, Timothy D. Bates and, on the brief, Lucia B. Brooks and Pamela R. Zeller, for the appellant (plaintiff).

      Robert J. Cathcart, with whom were Gregory T. D’Auria and Timothy Patrick Brady, for the appellee (defendant).
   Norcott, J.

The principal issues in this appeal are whether: (1) the plaintiff, the city of Groton, possesses an exclusive gas franchise pursuant to a 1913 legislative act; and (2) the plaintiff is entitled to an injunction to prevent the defendant, Yankee Gas Services Company, from providing gas service within the plaintiffs franchise area. The plaintiff brought suit against the defendant seeking an injunction to prohibit the defendant from laying pipe, entering into contracts for or providing natural gas service to any customer located within the plaintiffs franchise area. The trial court denied the plaintiffs request for permanent injunctive relief. 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).

The following facts are relevant to this appeal. In 1913, by special act of the Connecticut legislature, the charter of the borough of Groton was amended to grant the plaintiff a gas franchise, which allowed it to manufacture and sell gas within its borders. 16 Spec. Acts 814, No. 155 (1913). The plaintiff had previously been granted electric and water franchises, pursuant to 1901 and 1903 legislative acts respectively.

In 1927, the state granted the Connecticut Light & Power Company (CL&P) a gas franchise authorizing it to manufacture and distribute gas anywhere in the state provided that the territory was not already occupied and served by another entity. 20 Spec. Acts 223, No. 195, § 1 (1927). The state granted another gas franchise in 1955 to The Mohawk Gas Company (Mohawk) authorizing it to manufacture, distribute, and deliver gas subject to the limitations set forth in § 2 of its charter. 27 Spec. Acts 166, No. 218, §§ 1, 2 (1955). In 1989, Mohawk amended its charter to change its name to Yankee Gas Services Company.

Except for a period of time when it operated a propane gas plant and distribution system in the Fort Hill area of the city, the plaintiff has never provided gas service within its franchise area because it was not economically feasible to do so. In 1985, the economic prospects for gas service changed and the plaintiff began taking steps to develop a gas distribution system, including hiring a consulting engineering firm, obtaining cost estimates for construction and operation, and obtaining approval of a bond issue. The plaintiff also negotiated with the defendant, at the defendant’s initiative, to have the defendant supply the plaintiff with its natural gas requirements. An agreement, however, was never reached. To date, the plaintiff has still not begun to service customers with natural gas within its franchise area.

In June, 1989, the defendant acquired by assignment the gas franchise rights of CL&P after a United States Securities and Exchange Commission directive ordered CL&P to divest itself of its gas business. This assignment included the rights granted originally to CL&P in the 1927 act. In 1991, the defendant constructed a gas pipeline extending just inside the Groton town boundary with Ledyard that is capable of serving the Groton franchise area with gas. The defendant subsequently entered into a contract with the United States Department of the Navy to supply it with gas at its submarine base in Groton. The defendant also intends to supply other customers within the town and city of Groton with gas.

The plaintiff brought this action against the defendant seeking an injunction prohibiting the defendant from, among other things, constructing a gas distribution system and selling gas in the plaintiffs franchise area. The plaintiff claimed that it had an exclusive franchise to sell gas in the town and city of Groton and that, even if its franchise were not exclusive, the defendant was not authorized under its charter to enter the plaintiff’s franchise area without the plaintiff’s consent. The trial court denied the plaintiff’s request for injunctive relief, concluding that the plaintiff’s franchise was not exclusive and that the defendant did not need to obtain the plaintiff’s consent before entering the plaintiff’s franchise area.

On appeal, the plaintiff claims that the trial court improperly denied its request for injunctive relief because the court improperly concluded that: (1) the plaintiff’s gas franchise was not exclusive; and (2) the defendant’s charter did not require it to obtain the plaintiff’s consent before entering the franchise area because (a) the limitation in the defendant’s charter requiring consent did not apply to the rights assigned to it under the CL&P charter, and (b) the plaintiff’s efforts to develop a distribution system did not constitute occupying and serving its franchise area within the meaning of the CL&P charter. The plaintiff also claims that the trial court improperly excluded evidence that the plaintiff’s electric utility franchise would be adversely affected if the defendant supplied gas to customers in the plaintiffs franchise area. We affirm the judgment of the trial court.

I

The plaintiff first claims that the trial court improperly denied an injunction because it incorrectly found that the 1913 Special Act that amended the plaintiffs charter did not grant the plaintiff an exclusive franchise to provide gas within the town borders. If a statute confers an exclusive franchise, an injunction is appropriate to prevent infringement of the franchise rights. See New England Railroad Co. v. Central Railway & Electric Co., 69 Conn. 47, 55, 36 A. 1061 (1897). Number 155 of the 1913 Special Acts, which amended the charter of the borough of Groton to grant it a gas franchise, authorized the plaintiff to “produce, generate, and manufacture gas and electricity and to sell and use the same for the purpose of furnishing light, heat, and power to any or all persons who may desire the same, and for that purpose [Groton] shall have the right to build, maintain, and operate wires or other electrical conductors and gas pipes necessary for said business over, through, or under any or all of the streets, avenues, lanes and highways in the [franchise territory]; to take and hold any lands, property, or privileges, and to exercise any powers that may be necessary or convenient for carrying into effect any purpose of this act.”

The trial court ruled that, in the absence of any language in the statute indicative of an exclusive right to supply gas, the plaintiff did not have a right by virtue of its franchise to exclude another corporation from providing gas service to the area under a similar franchise. The plaintiff maintains on appeal that both the common law and public policy support implying exclusivity into the terms of its gas franchise. The plaintiff argues that the legislature intended to convey exclusive, monopolistic franchises because it is the public policy of this state that utility service be rendered by monopolies. Only by keeping each franchise area free from competition, the plaintiff claims, may that public policy be realized. The plaintiff argues, therefore, that regardless of whether it ever exercises its franchise right, it may exclude other franchise holders from entering its franchise area because otherwise competition will not be controlled. We disagree.

A franchise is a particular privilege conferred by grant from the government on an individual or group of individuals that does not belong to the citizens generally of common right. Crum v. Bliss, 47 Conn. 592, 602 (1880); Norwich Gas Light Co. v. Norwich City Gas Co., 25 Conn. 19, 35 (1856). The general rule with respect to public grants or charters is that they are construed in favor of the state and against the grantees. See Hartford Bridge Co. v. Union Ferry Co., 29 Conn. 210, 223 (1860); Norwich Gas Light Co. v. Norwich City Gas Co., supra, 33; 3 J. Sutherland, Statutory Construction (5th Ed. 1992) § 64.05; 36 Am. Jur. 2d, Franchises § 26 (1968). “Grants of rights and privileges by a State or municipality are strictly construed and whatever is not unequivocally granted is withheld—nothing passes by implication.” Piedmont Power Co. v. Graham, 253 U.S. 193, 194-95, 40 S. Ct. 453, 64 L. Ed. 855 (1920).

It follows, therefore, that unless franchise rights are expressly made exclusive by the plain language of the act in which they are granted, courts will not find exclusivity by implication. See Knoxville Water Co. v. Knox ville, 200 U.S. 22, 33, 26 S. Ct. 224, 50 L. Ed. 353 (1906); 1 0. Pond, Public Utilities (4th Ed. 1913) p. 415; 36 Am. Jur. 2d, supra, § 36. This principle was recognized early on by the United States Supreme Court in Proprietors of Charles River Bridge v. Proprietors of Warren Bridge, 36 U.S. (11 Pet.) 420, 9 L. Ed. 773 (1837), in which the court held that a grant by a state legislature of the right to maintain and operate a bridge was not exclusive because the grant did not expressly say that it was. The court noted: “The continued existence of a government would be of no great value, if by implications and presumptions, it was disarmed of the powers necessary to accomplish the ends of its creation; and the functions it was designed to perform, transferred to the hands of privileged corporations.” Id., 547. The principle that the exclusivity of franchise rights will not be implied if not expressly stated has been enforced since Proprietors of Charles River Bridge. See, e.g., Piedmont Power Co. v. Graham, supra, 195; Pearsall v. Great Northern Railway Co., 161 U.S. 646, 667, 16 S. Ct. 705, 40 L. Ed. 838 (1896), and cases cited therein; Norwich Gas Light Co. v. Norwich City Gas Co., supra, 38; J. Joyce, A Treatise on Franchises § 257 (1909).

Accordingly, without an express provision of exclusivity in the grant, a franchise is not exclusive in the sense that the legislature cannot grant a similar valid franchise to another entity. See City of Campbell, Mo. v. Arkansas-Missouri Power Co., 55 F.2d 560, 562 (8th Cir. 1932); Norwich Gas Light Co. v. Norwich City Gas Co., supra; 1 0. Pond, supra, p. 418. Application of these principles to the plaintiffs claim leads us to conclude that the lack of exclusivity language in the franchise granted by the legislature to the plaintiff in 1913 precludes a conclusion that the plaintiffs franchise bars any other validly franchised entity from operating in Groton.

Our conclusion is buttressed by the practice of our state legislature. The legislature has in other instances specifically included exclusivity language in the franchise grants of other organizations. See “Resolve Incorporating the Company for Erecting a Toll Bridge, with Locks, from Enfield to Suffield,” 1 Private Laws 249-50 (1798) (“no person or persons shall have liberty to erect another bridge anywhere between the north line of said Enfield and the south line of Windsor”); “Amending the Charter of the Norwich Gas Light Co.,” 3 Private Laws 585-86, § 2 (1855) (“the right ... is hereby declared to be exclusive”). The legislature has also recognized and provided varying degrees of protection to preexisting franchises when it has granted new franchises. See “Incorporating the Branford Electric Company,” 12 Spec. Acts 104-105, No. 73, § 2 (1895) (“provided, however, said corporation shall not distribute or sell electricity for any purpose in the town of Guilford, in competition with any existing electric light company”) (emphasis in original); “Incorporating the North Haven Gas and Power Company,” 14 Spec. Acts 830-31, No. 343, § 1 (1903) (“provided, however, that the right to manufacture, sell and distribute gas . . . is upon the express condition that The New Haven Gas Light Company shall not, prior to July 1, 1906, have laid its gas mains and supplied gas”). The legislature has the discretion to determine the extent of the rights granted in a franchise, and to grant the right to compete in certain areas. Had the legislature intended to grant the plaintiff an exclusive franchise, it could easily have so provided in the plaintiff’s charter. We conclude, therefore, that the trial court properly determined that the plaintiff’s franchise was not exclusive.

II

The plaintiff also claims that, even if its gas franchise is not exclusive, it was entitled to injunctive relief because the defendant could not enter its franchise territory under its charter without the plaintiff’s consent. The grant of a nonexclusive franchise does not carry with it the right to be free from competition from another entity that has been granted a valid franchise. It does, however, embody a right to be free from unauthorized competition, and if a party enters a franchisee’s territory without such authorization, an injunction is a proper remedy. Frost v. Corporation Commission of Oklahoma, 278 U.S. 515, 521, 49 S. Ct. 235, 73 L. Ed. 483 (1929); 36 Am. Jur. 2d, supra, § 34. Therefore, our determination of whether the trial court improperly denied the plaintiff’s request for injunctive relief requires us to examine whether the defendant entered the plaintiff’s franchise area under a valid franchise.

The plaintiff claims that the trial court improperly determined that the defendant had authority to enter the plaintiff’s franchise area because the court improperly: (1) interpreted provisions of the defendant’s charter that afford the basis for the defendant’s right to enter the plaintiff’s franchise area; and (2) determined that the plaintiff’s actions with respect to establishing its own gas distribution system did not suffice to constitute “occupying and serving” within the meaning of the CL&P charter. We address each of these claims in turn.

A

INTERPRETATION OF CHARTER PROVISIONS

Section 2 of the defendant’s charter defines the defendant’s powers with respect to exercising its gas franchise and imposes certain limitations on those powers. See footnote 2. Specifically, § 2 (b) empowers the defendant to operate in any franchise area in the state, subject to the limitation that it not “exercise the authority granted by this section to sell natural, manufactured or mixed gas to any person, firm, corporation or municipality except [one] authorized to transmit or sell gas within such franchise area, unless such sale is consented to by such person, firm, corporation or municipality . . . .” (Emphasis added.) 27 Spec. Acts 166, No. 218, § 2 (1955).

The plaintiff argued before the trial court that this limitation in the defendant’s charter meant that the defendant could not enter the plaintiff’s franchise area without its consent. The defendant countered that, because it had been assigned the franchise rights granted to CL&P in 1927, it could enter the plaintiff’s franchise territory pursuant to that right, and therefore was subject to the limitation in the 1927 act that consent be obtained only if the territory was already occupied and served by another company. The defendant cited as authority for this proposition § 2 (d) of its charter, claiming that it contemplated such activity. That section provides that the defendant may “acquire by merger, consolidation, lease, purchase or otherwise . . . and . . . hold, own, use, exercise, enjoy and dispose of the whole or any part of the gas property, rights, privileges, properties, securities, contracts, powers and franchises now or hereafter owned or possessed by any gas company chartered by the general assembly of the state of Connecticut . . . .’’Id.

The trial court concluded that the consent limitation expressed in § 2 (b) applied only to that section, and had it been intended to apply also to rights exercised under § 2 (d), it would have appeared in the prefatory language of the entire § 2 rather than within the body of a specific subsection. The trial court noted that to apply the limitation of § 2 (b) to rights acquired under § 2 (d) would render meaningless the language that the defendant could acquire and exercise the whole or any part of another gas franchise. Therefore, the trial court concluded, when the defendant acquired CL&P’s franchise rights, it acquired the ability to enter any area not already served with gas without first obtaining the consent of the municipality.

The plaintiff maintains that the trial court improperly interpreted the provisions of the defendant’s charter. The plaintiff argues that reading the defendant’s charter to permit the defendant unilaterally to enter the plaintiff’s franchise territory in effect expands the powers granted to the defendant in its governing instrument. The plaintiff claims that the defendant’s charter makes consent a precondition to service in areas in which there is an existing gas franchise holder, and that only legislative action can expand the defendant’s rights to avoid the consent requirement.

The defendant argues, to the contrary, that interpreting the limitation of § 2 (b) to apply to all of § 2 diminishes the power granted to the defendant under its charter as enacted. The defendant contends that the provision in § 2 (d) that it may acquire and exercise the whole of another company’s franchise contemplates that the defendant be able to exercise fully franchise rights already in existence. It is therefore, the defendant argues, only to the extent that the defendant’s franchise grants it a new and independent right to sell gas, which § 2 (b) authorizes it to do, that it must first obtain the consent of a preexisting franchise holder. We agree with this interpretation.

In interpreting the language of a statute, we are guided by the premise that we must consider the statute as written and read it as a whole. Orticelli v. Powers, 197 Conn. 9, 13-14, 495 A.2d 1023 (1985). “[N]o part of a legislative enactment is to be treated as insignificant or unnecessary, and there is a presumption of purpose behind every sentence, clause or phrase . . . and no word in a statute is to be treated as superfluous. Insofar as it is possible, the entire enactment is to be harmonized, each part made operative.” (Citations omitted; internal quotation marks omitted.) Peck v. Jacquemin, 196 Conn. 53, 66, 491 A.2d 1043 (1985). We approach this task mindful of the assumption that the legislature intended to accomplish a reasonable and rational result. Id.

Reading § 2 of the defendant’s charter as a whole, we are persuaded that the legislature intended that the defendant have the power to acquire franchise rights that were not subjected to a consent limitation. The plaintiff claims that the language of § 2 (b) limiting “the authority granted by this section to sell . . . gas” (emphasis added) requires reading the consent limitation to apply to all of § 2. The plaintiff argues that, had the legislature intended otherwise it would have referred to the authority granted by this subsection rather than section. Such an interpretation, however, would render meaningless the provision of § 2 (d) that the defendant may acquire and exercise the whole or any part of a franchise already granted to another entity.

We find it significant that the only provision in which the right to sell gas is granted to the defendant is § 2 (b). Therefore, it is a reasonable construction to read the limitation on the right to sell gas, that consent of the franchise holder be obtained, as applicable to the power granted in § 2 (b) alone. A reading of the provisions as a whole indicates that § 2 (b) granted the defendant a new and independent right to sell gas, and that the consent requirement extends protection to preexisting franchise holders from that new right. If, however, no new right is being exercised and the defendant is instead exercising rights by virtue of its acquisition of an existing gas franchise, this protection is unnecessary, and the defendant may exercise such acquired franchise subject only to the limitations contained in that franchise at the time the assignment was made.

We conclude that the trial court properly determined that the terms of the defendant’s charter did not require it to obtain the plaintiff’s consent before entering the plaintiff's franchise territory. Such consent would have been required only if it had been necessary under the terms of the franchise acquired by the defendant from CL&P.

B

WHETHER THE PLAINTIFF OCCUPIED AND SERVED ITS FRANCHISE AREA

The plaintiff also claims that, even if the defendant’s authority to enter the plaintiff’s franchise area is governed by the 1927 franchise assigned to the defendant by CL&P, the trial court improperly determined that the plaintiff’s efforts to develop a gas distribution system did not constitute “occupying and serving” the franchise area within the meaning of CL&P’s charter. The CL&P franchise states that it may supply gas anywhere in the state except “within the territory occupied and served by any other company now incorporated unless by consent of such other company.” 20 Spec. Acts 223, No. 195, § 1 (1927). The plaintiff argued before the trial court that, even if the 1927 franchise provisions govern, the plaintiffs consent was still required because it was already occupying and serving its franchise area. The trial court found that the plaintiff’s plans were tenuous at best and did not constitute serving the franchise area with gas. Therefore, the trial court concluded that this restriction did not preclude the defendant from serving the franchise area.

On appeal, the plaintiff maintains that its actions in pursuit of establishing a gas distribution system constitute “occupying and serving” and that its consent was, therefore, necessary before the defendant could enter the franchise area. We disagree.

Whether the plaintiff “occupied and served” its franchise area is a question of fact, and we will upset a factual determination of the trial court only if it is clearly erroneous. “The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. ... We cannot retry the facts or pass on the credibility of the witnesses. A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Citations omitted; internal quotation marks omitted.) Crowell v. Danforth, 222 Conn. 150, 156, 609 A.2d 654 (1992); see also Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 220, 435 A.2d 24 (1980).

The plaintiff presented the following evidence to the trial court regarding its endeavor to develop its own gas distribution system. Beginning in 1985, the plaintiff hired a consultant to study various issues associated with providing gas service and to prepare the necessary engineering plans. In addition, the plaintiff has investigated a potential customer base, researched potential sources of gas supply, including the defendant, and produced drawings laying out where pipelines would be required. The plaintiff also had approved an $18 million bond issue in order to construct and develop a gas system in Groton. The plaintiff altogether had expended approximately $700,000 covering legal fees, consultant’s fees, and environmental impact studies. To date, however, the plaintiff still does not have a gas distribution system or any gas customers. For the plaintiff to be able to begin servicing customers would require, among other things, the construction of a gate station, building a pipeline, and obtaining a contract for a supply of gas.

Our review of this evidence leaves us unpersuaded that the trial court improperly found that the plaintiff did not “occupy and serve” its franchise area. “We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached.” Pandolphe’s Auto Parts, Inc. v. Manchester, supra, 222. The evidence supports the finding that the plaintiff’s gas service is still conceptual in nature and that only preliminary steps have been taken to offer gas service within its franchise area. We conclude, therefore, that the trial court properly found that the defendant had a valid franchise and that it could enter the plaintiff’s franchise territory without the plaintiff’s consent. Accordingly, the trial court properly denied the plaintiff’s request for an injunction.

The judgment is affirmed.

In this opinion the other justices concurred.

       The city of Groton was known as the borough of Groton from 1903 to 1964.

       Section 2 of the charter of the Mohawk Gas Company provides: “Said corporation is vested with the power, subject to the limitations hereafter stated: (a) To build, acquire by lease, purchase or otherwise, own and operate one or more pipelines and related facilities, including compressors, pumping stations, tanks, storage facilities, mains, appliances and other pertinent equipment for the gathering, mixing, transmission and distribution of natural, manufactured and mixed gas and the by-products thereof; (b) to buy, manufacture, produce, sell, furnish, transport, store, distribute, dispose of and otherwise deal in natural, manufactured and mixed gas and the by-products thereof; provided, within the franchise area of any person, firm, corporation or municipality which is chartered or authorized by the state of Connecticut to transmit or sell gas within said franchise area, this corporation shall not exercise the authority granted by this section to sell natural, manufactured or mixed gas to any person, firm, corporation or municipality except a person, firm, corporation or municipality authorized to transmit or sell gas within such franchise area, unless such sale is consented to by such person, firm, corporation or municipality so authorized to transmit or sell gas within such franchise area; (c) to install, operate and maintain, subject to any requisite approval of public authority, pipelines, mains and related appliances necessary for the transmission, storage and distribution of gas, either overhead or underground, over or under streams, and in, over, under and upon the public highways, streets, avenues and public parks or grounds in any town, city and borough within this state; (d) to acquire by merger, consolidation, lease, purchase or otherwise, upon such terms and conditions as may be agreed upon, and in the manner and subject to the terms and conditions provided by the general statutes in the case of the merger or consolidation or other acquisition of corporations organized under the general statutes, and to hold, own, use, exercise, enjoy and dispose of the whole or any part of the gas property, rights, privileges, properties, securities, contracts, powers and franchises now or hereafter owned or possessed by any gas company chartered by the general assembly of the state of Connecticut for the purchase, manufacture, production, transmission, distribution and sale of natural, manufactured and mixed gas and matters incidental thereto.”

       The plaintiff does, however, operate an electrical and water utility servicing all areas within its franchise.

       Before 1985, the plaintiff did not have access to a pipeline from which it could obtain an economical supply of gas. However, as a result of Federal Energy Regulatory Commission Order No. 436; 50 Fed. Reg. 42, 408 (1985); an intrastate pipeline reached the plaintiffs territory and lower cost gas thereafter became available. Additionally, it appeared in 1985 that a cogeneration project would be built by Pfizer, Inc., in Groton that would increase the demand for gas service and also make it economically worthwhile to start pursuing the development of a gas distribution system.

       The plaintiff challenges, as a separate claim, the trial court’s denial of its request for injunctive relief. Whether an injunction was warranted, however, necessarily depends on whether the plaintiff possessed an exclusive franchise or whether the defendant entered the plaintiffs franchise territory without authority. Therefore, we address the plaintiff’s challenge to the trial court’s denial of its request for injunctive relief as subsumed within the plaintiff’s other claims rather than as a separate claim.

       The trial court also found, as part of its finding on the exclusivity issue, that the plaintiffs gas franchise was separate and distinct from its water and electricity franchises, and therefore that the plaintiff could not treat the gas franchise as part of an integrated whole for purposes of determining whether the right had yet been exercised. The plaintiff does not challenge that finding on appeal.

       The United States Supreme Court also stated with respect to the charter before it: “In charters of this description, no rights are taken from the public, or given to the corporation, beyond those which the words of the charter, by their natural and proper construction, purport to convey. . . . The whole community are interested in this inquiry, and they have a right to require that the power of promoting their comfort and convenience . . . shall not be construed to have been surrendered or diminished by the state; unless it shall appear by plain words, that it was intended to be done.” Proprietors of Charles River Bridge v. Proprietors of Warren Bridge, 36 U.S. (11 Pet.) 420, 549, 9 L. Ed. 773 (1837).

       Indeed, the attorney general of Connecticut in 1973 reiterated this doctrine in a letter to the public utilities commission. There, the attorney general stated “the grant of a franchise is not to be implied to be the grant of an exclusive franchise, nor is any other attribute or power to be implied that is not expressly set forth in the charter . . . .” Letter from Robert K. Killian, Attorney General, to Howard E. Hausman, Chairman, Public Utilities Commission (March 12, 1973).

       We note that the principles of law outlined above involve cases in which franchise rights were granted by a state legislature to a private corporation or by a municipality to a private corporation or municipal public utility. We have found no case discussing exclusivity involving a state granted franchise to a municipality. Neither party has raised that distinction before this court. We see no reason, however, why the same principles would not apply here.

       Indeed, at a hearing of the Committee on Cities and Boroughs considering passage of the 1913 amendment to the plaintiffs charter, Representative Charles S. Avery commented: “[S]ince the borough has never been engaged in the manufacture and distribution of gas the question might come up whether or not the legislature might not some time or other incorporate another company. I think if the citizens were given to understand that they had the right to manufacture and sell gas the legislature would not in the future authorize some private company to do that. It is simply a matter of protection. Even if they give us that power they can do it, but they would not be apt to.” (Emphasis added.) Conn. Joint Standing Committee Hearings, 2 Cities and Boroughs, 1913 Sess., pp. 592-93. It appears, therefore, that at the time the plaintiffs charter was amended the legislature understood that it had the power at a later date to authorize another company to service the franchise area.

       The plaintiff also claims that the trial court improperly excluded evidence that the plaintiff attempted to introduce relating to the impact that the defendant’s sale of gas in Groton would have on the plaintiff’s electric franchise. The plaintiff maintains that this evidence was admissible to show that it would suffer irreparable harm if the defendant were allowed to infringe on the plaintiff’s franchise. Our disposition of the plaintiff’s challenge to the defendant’s authority to enter the plaintiff’s franchise territory without its consent, however, makes it unnecessary for us to address that issue. Likewise, because we hold in favor of the defendant, we need not address the defendant's alternative ground for affirmance of the trial court’s decision.

       Number 195 of the 1927 Special Acts, which granted CL&P a gas franchise, provides in relevant part: “The Connecticut Light & Power Company is authorized to manufacture, purchase, supply and/or distribute gas within the state of Connecticut for light, heat, refrigeration, fuel and all purposes for which it now is or may hereafter be used, and to manufacture and sell the by-products thereof, excepting that it shall not have power to supply and sell gas within the territory occupied and served by any other company now incorporated unless by consent of such other company

       The plaintiff argues that the nature of a franchise is that of a contract between the sovereign and the grantee, and therefore we must apply contract principles of interpretation. We note that the interpretation of contracts requires us to undertake the same analysis, and to construe all of the relevant provisions as a whole so that none is rendered meaningless. See Barnard v. Barnard, 214 Conn. 99, 109, 570 A.2d 690 (1990); Hatcho Corporation v. Della Pietra, 195 Conn. 18, 23, 485 A.2d 1285 (1985).


source: Caselaw Access Project

author: Callahan, J.

license: Public Domain

text:
    J. Blaine Lewis v. Connecticut Gaming Policy Board et al.
    (14481)
    Callahan, Borden, Berdon, Norcott and Katz, Js.
    Argued October 30, 1992
    decision released February 23, 1993

      William S. Rogers, with whom was Susan Quinn, for the appellant (plaintiff).

      Richard M. Sheridan, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellees (defendants).
   Callahan, J.

This appeal raises two procedural issues: (1) whether a Superior Court judge was prohibited from reviewing and reversing a ruling, made earlier in the same case by a coordinate judge, relating to a question of subject matter jurisdiction; and (2) whether the proceedings before an administrative agency terminating the employment of an appointed, unclassified permanent state employee who served as a unit head in the division of special revenue constituted a “contested case” under General Statutes § 4-166 (2). The plaintiff, J. Blaine Lewis, filed an administrative appeal in the Superior Court from a decision terminating the plaintiff’s employment with the defendant division of special revenue. The Superior Court, Norko, J., dismissed the plaintiff’s administrative appeal for lack of subject matter jurisdiction. The plaintiff appealed from the court’s judgment 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 Superior Court.

The following facts are relevant to this appeal. The plaintiff was employed by the defendant state department of revenue services in its division of special revenue (division). For nine years, until 1989, the plaintiff served as the head of the lottery unit of the division. The division works in cooperation with the defendant gaming policy board (board) to implement and administer all Connecticut lottery games. The plaintiffs immediate supervisor was the defendant William V. Hickey, executive director of the division.

On May 16, 1989, the executive director informed the plaintiff that the division was changing one of the lottery games, LOTTO, from a game consisting of forty numbers to one consisting of forty-four numbers. The executive director ordered the plaintiff to design and implement the changed format and to prepare a favorable presentation of the changed format to the board. The plaintiff refused to comply with the executive director’s order and requested that the executive director withdraw the order. The executive director thereupon placed the plaintiff on paid leave of absence. On May 22, 1989, the plaintiff was notified that a “pre-disciplinary decision hearing” would be conducted before the executive director on May 24, 1989, pursuant to the division’s personnel procedure No. 1, to discuss the plaintiff’s refusal to comply with the executive director’s order. The executive director himself presided at the “predisciplinary decision hearing” and terminated the plaintiff’s employment for disobeying his order.

Thereafter, the executive director requested that the board add the matter of his decision to terminate the plaintiff’s employment to its agenda for its next executive session. At an executive session of the board on May 26, 1989, the plaintiff appeared, accompanied by counsel, to testify on his own behalf. At the conclusion of a summary proceeding, the board voted in favor of a resolution to approve the executive director’s decision to terminate the plaintiff’s employment.

On August 17,1989, the plaintiff appealed the order of termination to the Superior Court pursuant to General Statutes § 4-183 (a) of the Uniform Administrative Procedure Act (UAPA). The defendants filed a motion to dismiss the plaintiffs action based on a lack of subject matter jurisdiction, claiming that the plaintiff had not appealed from a “contested case” as defined in § 4-166 (2). The trial court, Freed, J., denied the defendants’ motion. The defendants then filed an answer to the plaintiffs complaint in which they alleged as a special defense that the court lacked subject matter jurisdiction.

The plaintiff’s appeal was assigned to Judge Raymond R. Norko, who heard argument on both the merits of, and the court’s subject matter jurisdiction over, the appeal. The court, Norko, J., dismissed the plaintiff’s appeal, concluding that the court was without subject matter jurisdiction because the proceedings surrounding the plaintiff’s termination from the division did not involve a “contested case” as required under the UAPA. This appeal followed.

The plaintiff argues on appeal to this court that the trial court, Norko, J., improperly: (1) reviewed and reversed a decision of a coordinate court; (2) concluded that the proceedings surrounding the plaintiffs termination from employment with the division did not constitute a contested case under § 4-166 (2) from which he had a right to appeal; and (3) failed to address whether the plaintiffs right to employment as secured by General Statutes §§ 31-51m and 31-51q was sufficient to qualify the termination proceedings for “contested case” status. We conclude that Judge Norko properly reviewed the prior ruling by a coordinate judge on the issue of the court’s subject matter jurisdiction over the plaintiffs appeal and the court properly dismissed the plaintiff’s appeal because the appeal had not been taken from a decision in a contested case.

I

The plaintiff first claims that Judge Norko improperly reviewed and reversed the decision of Judge Freed on the issue of whether the proceedings terminating the plaintiff’s employment with the division constituted a contested case. The plaintiff argues that, under the doctrine of the law of the case, the previous ruling was binding on Judge Norko and there was no cause for review or reversal of that ruling. We do not agree.

“The law of the case . . . expresses the practice of judges generally to refuse to reopen what has been decided and it is not a limitation on their power. . . . Where a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided . . . .” Breen v. Phelps, 186 Conn. 86, 99, 439 A.2d 1066 (1982). “Nevertheless, if the case comes before [a subsequent judge] regularly and he becomes convinced that the view of the law previously applied by his coordinate predecessor was clearly erroneous and would work a manifest injustice if followed, he may apply his own judgment.” Id., 100.

On November 29, 1990, Judge Freed addressed the court’s subject matter jurisdiction over the plaintiff’s appeal pursuant to the defendants’ motion to dismiss and concluded that the plaintiffs appeal presented a contested case under § 4-166 (2). Thereafter, Judge Norko, on November 14, 1991, again addressed the same issue after it had been reasserted as a special defense in the defendants’ answer to the plaintiff’s complaint. Judge Norko recognized that, although the law of the case doctrine ordinarily restrains a judge’s review of a prior ruling in the same case by a coordinate judge, the doctrine did not prevent him from revisiting the issue of the court’s subject matter jurisdiction.

It is a fundamental rule that a court may raise and review the issue of subject matter jurisdiction at any time. Sasso v. Aleshin, 197 Conn. 87, 89, 495 A.2d 1066 (1985). Practice Book § 145 provides: “Any claim of lack of jurisdiction over the subject matter cannot be waived; and whenever it is found after the suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.”

“Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it. 1 Restatement (Second), Judgments § 11.” Craig v. Bronson, 202 Conn. 93, 101, 520 A.2d 155 (1987). “ ‘[A] court lacks discretion to consider the merits of a case over which it is without jurisdiction . . . Neyland v. Board of Education, 195 Conn. 174, 181, 487 A.2d 181 (1985), quoting Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 379, 101 S. Ct. 669, 66 L. Ed. 2d 571 (1981). “The objection of want of jurisdiction may be made at any time . . . [a]nd the court or tribunal may act on its own motion, and should do so when the lack of jurisdiction is called to its attention.” (Internal quotation marks omitted.) Doe v. Heintz, 204 Conn. 17, 35, 526 A.2d 1318 (1987); Woodmont Assn. v. Milford, 85 Conn. 517, 524, 84 A. 307 (1912). “The requirement of subject matter jurisdiction cannot be waived by any party and can be raised at any stage in the proceedings. . . . If at any point, it becomes apparent to the court that such jurisdiction is lacking, the appeal must be dismissed.” Laurel Park, Inc. v. Pac, 194 Conn. 677, 679 n.1, 485 A.2d 1272 (1984); see also Practice Book § 145.

The obligation of Judge Norko to revisit a claim of lack of jurisdiction made in the defendants’ answer to the plaintiff’s complaint tempers the application of the doctrine of the law of the case. Although Judge Norko’s review of the first ruling was not predicated on the existence of new evidence or a change in the law since the first ruling, it revealed a conviction on his part that the prior decision was clearly erroneous. Breen v. Phelps, supra, 100. Furthermore, because we determine herein that the initial ruling on the issue of the court’s subject matter jurisdiction was in fact incorrect, the plaintiff’s first claim is without merit.

II

The plaintiff next claims that the trial court incorrectly concluded that the termination proceedings before the administrative agency did not constitute a “contested case” under General Statutes § 4-166 (2), and, as a consequence, the court lacked subject matter jurisdiction over the plaintiff’s appeal. We do not agree.

There is no absolute right of appeal to the courts from a decision of an administrative agency. See Connecticut Bank & Trust Co. v. Commission on Human Rights & Opportunities, 202 Conn. 150, 154, 520 A.2d 186 (1987). “The UAPA grants the Superior Court jurisdiction over appeals of agency decisions only in certain limited and well delineated circumstances.” New England Dairies, Inc. v. Commissioner of Agriculture, 221 Conn. 422, 427, 604 A.2d 810 (1992). Judicial review of an administrative decision is governed by General Statutes § 4-183 (a) of the UAPA, which provides that “[a] person who has exhausted all administrative remedies . . . and who is aggrieved by a final decision may appeal to the superior court . . . .” A final decision is defined in § 4-166 (3) (A) as “the agency determination in a contested case . . . .” (Emphasis added.)

A “contested case” is defined in § 4-166 (2) as “a proceeding ... in which the legal rights, duties or privileges of a party are required by statute to be determined by an agency after an opportunity for hearing or in which a hearing is in fact held . . . .” (Emphasis added). Not every matter or issue determined by an agency qualifies for contested case status. See, e.g., New England Dairies, Inc. v. Commissioner of Agriculture, supra. “[W]e have determined that even in a case where a hearing is ‘in fact held,’ in order to constitute a contested case, a party to that hearing must have enjoyed a statutory right to have his ‘legal rights, duties or privileges’ determined by that agency holding the hearing. ... In the instance where no party to a hearing enjoys such a right, the Superior Court is without jurisdiction over any appeal from that agency’s determination.” (Citations omitted.) Id.

The plaintiff asserts that he possessed a legal right or privilege in his continued employment with the division and that the defendants were required by statute or regulation to determine that legal right or privilege only after providing an opportunity for a meaningful hearing. Even if the plaintiff did have a legal right or privilege in continued employment with the division, and even if that right or privilege was terminated in a deficient proceeding before the executive director and the board, the plaintiff still cannot prevail unless the defendants were statutorily required to determine the plaintiffs legal right or privilege to his continued employment in a hearing. See, e.g., New England Dairies, Inc. v. Commissioner of Agriculture, supra, 429 (commissioner of agriculture was not required by statute to determine a milk dealer’s right to a license after an opportunity for a hearing); Rybinski v. State Employees’ Retirement Commission, 173 Conn. 462, 471, 378 A.2d 547 (1977) (commission was not required by statute to provide an opportunity for a hearing prior to denying a state employee’s written request to change retirement plans); Taylor v. Robinson, 171 Conn. 691, 697, 372 A.2d 102 (1976) (parole board had no statutory obligation to determine if a prisoner should be released from parole).

To ascertain whether a statute requires an agency to determine the legal rights, privileges or duties of a party, we need to examine all the statutory provisions that govern the activities of the particular agency or agencies in question. Rybinski v. State Employees’ Retirement Commission, supra, 471. Chapter 226 of the General Statutes, §§ 12-557 through 12-578, controls the activities of the division of special revenue and the gaming policy board. The division works in cooperation with the board to implement and administer all legalized gambling in Connecticut. General Statutes § 12-557e. The executive director of the division, under General Statutes § 12-562 (a), “shall have power generally to do whatever is reasonably necessary for the carrying out of the intent of this chapter . . . .”

Before both Judges Freed and Norko, the plaintiff asserted that the statutory requirement obligating the defendants to determine the plaintiff’s legal right or privilege in his continued employment is found in General Statutes § 12-559, which provides in relevant part that “the executive director shall, with the advice and consent of the board, appoint unit heads for each of the units created within the division, who shall be exempt from classified service.” The plaintiff reasoned that, because § 12-559 requires that the executive director appoint unit heads with the advice and consent of the board, it implies that the executive director, with the advice and consent of the board, must determine whether to continue to employ the plaintiff as a unit head. Judge Freed agreed with the plaintiff’s construction of § 12-559. Judge Norko, however, found that the text of § 12-559 neither states nor suggests that the statutory right to appoint unit heads creates a corresponding statutory duty to determine, in any type of proceeding, the right or privilege of a unit head to continue state employment. Judge Norko concluded that if the legislature had intended that the defendants were to be statutorily obligated to determine a unit head’s legal right or privilege in continued employment in a hearing, it would have so provided. We agree with this reasoning.

The statutes applicable to this case imply, if anything, that the legislature intended that the executive director not be required to determine the legal rights or privileges of unit heads in their continued employment after an opportunity for a hearing. Section 12-562 vests in the executive director “power generally to do whatever is reasonably necessary for the carrying out of the intent of this chapter . . . .” Moreover, unit heads in the division of special revenue, as appointed officials, serve “at the pleasure of” the executive director. General Statutes § 4-la. The fact that the plaintiff served “at the pleasure of” the executive director indicates that the executive director was not statutorily required to determine the plaintiffs legal right or privilege in continued employment after providing an opportunity for a hearing. Consequently, in the absence of an express statutory requirement obligating the defendants to determine the plaintiffs legal right or privilege to continued employment, the plaintiffs claim fails.

The plaintiff also argues that the termination by the defendants of his employment with the division qualified as a contested case because an agency personnel policy required that the defendants determine the plaintiffs legal right or privilege in continued employment subsequent to his having had a meaningful opportunity to be heard. In support of his argument, the plaintiff suggests that the test for determining whether a proceeding is a contested case was expanded in All Brand Importers, Inc. v. Department of Liquor Control, 213 Conn. 184, 212, 567 A.2d 1156 (1989), wherein the court stated that “[t]o qualify a proceeding as a ‘contested case’ under § 4-166 (2) and, thus, to be entitled to a ‘hearing,’ a party must have a statutory or regulatory right to be heard by the agency.” (Emphasis added.)

The plaintiff misconstrues AM Brand Importers, Inc. The court, in All Brand Importers, Inc., cited Herman v. Division of Special Revenue, 193 Conn. 379, 477 A.2d 119 (1984), in support of the above proposition. In Herman, we stated: “In order for a proceeding to qualify as a ‘hearing’ for the purposes of [a contested case], the party must have a statutory or regulatory right to be heard by the agency.” (Emphasis added.) Id., 383. In Herman, the division of special revenue granted a hearing at the request of a plaintiff who wished to be reinstated as a jai alai patron after he had been ejected from the Milford Jai Alai Fronton. The division stated that, although it would provide a hearing, it was not required to do so by statute or regulation. Id., 380. At the hearing, the plaintiff asked that he be reinstated, and his request was denied. On appeal to this court, the plaintiff claimed that the hearing regarding his reinstatement was a “contested case” under § 4-166 (2) because it was a hearing that was in fact held before the division. In reviewing this claim, the court in Herman found that a “hearing” had taken place; it then addressed the issue of whether the fact that a hearing had actually been held established the proceedings as a contested case under the UAPA. We concluded that because the division was not “statutorily required to determine the eligibility for reinstatement of an ejected patron . . . there was no contested case to which the provisions of the UAPA might apply.” (Emphasis added.) Id., 386-87. The reference in Herman, therefore, to a regulatory requirement for a hearing was dictum.

In light of Herman, whether a hearing qualifies for contested case status under § 4-166 (2) is a different inquiry from whether a hearing is required by a regulation to be held. Although an agency rule, policy or regulation may require a hearing, that hearing will not qualify the proceedings as a contested case unless the agency is statutorily required to determine the legal rights or privileges of the party aggrieved in that proceeding.

Neither Herman nor All Brand Importers, Inc., stands for the proposition that a regulation simply requiring an agency to hold a hearing will qualify a proceeding for “contested case” status under § 4-166 (2). In Herman, upon which All Brand Importers, Inc., is based, we stated: “The test for determining contested case status has been well established and requires an inquiry into three criteria, to wit: (1) whether a legal right, duty or privilege is at issue, (2) and is statutorily required to be determined by the agency, (3) through an opportunity for [a] hearing or in which a hearing is in fact held.” (Emphasis added.) Herman v. Division of Special Revenue, supra, 382. Under this test, although agency regulations, rules or policies may require the agency to hold a hearing, that does not constitute a matter as a “contested case” under § 4-166 (2) unless the plaintiffs rights or privileges are “statutorily” required to be determined by the agency. If the plaintiffs rights or privileges are not “statutorily” required to be determined by the agency, a “contested case” does not exist and a plaintiff would have no right to appeal pursuant to § 4-183 (a).

The plaintiff asserts that in All Brand Importers, Inc., we implied that a regulation requiring an agency to hold a hearing is sufficient to qualify the proceeding for “contested case” status under § 4-166 (2). We find nothing in All Brand Importers, Inc., that justifies interpreting the clear language of § 4-166 (2) to include agency regulations necessitating a hearing as a source of authority for requiring that an agency must statutorily determine a party’s legal rights or privileges. Even where a hearing was in fact held we have found that the proceeding did not constitute a “contested case” because there was no statutory mandate that rights or privileges be determined. New England Dairies, Inc. v. Commissioner of Agriculture, supra, 427. “[W]hen the language of a statute is plain and unambiguous, we need look no further than the words themselves because we assume that the language expresses the legislature’s intent.” American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 193, 530 A.2d 171 (1987). “The intent of the legislature, as this court has repeatedly observed, is to be found not in what the legislature meant to say, but in the meaning of what it did say.” Burnham v. Administrator, 184 Conn. 317, 325, 439 A.2d 1008 (1981); Federal Aviation Administration v. Administrator, 196 Conn. 546, 549-50, 494 A.2d 564 (1985).

The “required by statute” language in § 4-166 (2), if construed according to its commonly approved usage, can only mean that before a proceeding qualifies as a contested case, an agency must be obligated by an act promulgated by the legislature to determine the legal rights, duties or privileges of a party. See General Statutes § 1-1. A proceeding in which only an agency rule, regulation or policy requires a determination of rights after a hearing will not qualify.

Not only the text, but also the legislative history of § 4-166 (2) supports our reading of the statute. When first enacted in 1973, § 4-166 (2) contained the language “required by law” rather than “required by statute.” The phrase “required by law” is found in the 1961 Model State Administrative Procedure Act, and is also found in the statutes of most other jurisdictions that have adopted the model act. Model State Administrative Procedure Act (1961) § 1 (2), 14 Uniform Laws Annotated (1980) 357; 1F. Cooper, State Administrative Law (1965) p. 120. The term “law” as contained in the contested case provisions in other jurisdictions has a broader meaning than the term “statute,” and has been interpreted in other jurisdictions to refer generically to any species of law, including constitutional provisions, and agency rules, regulations and policies. See, e.g., Burgess v. Softich, 167 Mont. 70, 77, 535 P.2d 178 (1975) (interpreting the “required by law” language in the contested case provision in Mont. Code Ann. § 82-4202 [3] [1975] to include an agency rule). In 1973, the Connecticut legislature amended § 4-166 (2) and replaced the “required by law” language with “required by statute.” Public Acts 1973, No. 73-620, § 2. By amending § 4-166 (2) to replace the phrase, “required by law,” with the phrase, “required by statute,” the legislature clearly manifested an intent that only a determination of rights, duties and privileges required by statute would constitute a basis for a “contested case.”

The interpretation ascribed to the “required by statute” language contained in other state and federal administrative procedure provisions similar to § 4-166 (2) is consistent with our reading of Connecticut’s contested case provision. For example, Iowa’s contested case provision states that a “ ‘[contested case’ means a proceeding ... in which the legal rights, duties or privileges of a party are required by Constitution or statute to be determined by an agency after an opportunity for an evidentiary hearing.” (Emphasis added.) Iowa Code Ann. § 17A.2 (2) (1989). The Iowa Supreme Court has consistently followed the analysis of Iowa’s contested case provision set forth in Professor Arthur E. Bonfield’s article, “The Definition of Formal Agency Adjudication Under the Iowa Administrative Procedure Act,” 63 Iowa L. Rev. 285 (1977). See, e.g., Allegre v. State Board of Regents, 349 N.W.2d 112, 114 (Iowa 1984); Polk County v. State Appeal Board, 330 N.W.2d 267, 276 (Iowa 1983). In his article, Professor Bonfield wrote that in order to be a “contested case” the rights and privileges of a party must be required, under the Iowa Code, to be determined by “Constitution or statute,” and that a right or privilege conferred by agency rule or policy would not suffice. A. Bonfield, supra, 308. He based his conclusion on the plain meaning of the specific language used, and on the fact that the language was purposely chosen to accomplish that result. Id.

Professor Bonfield, a recognized authority on state administrative law and the author of the treatise, State Administrative Rule Making (1986), had recommended to a subcommittee of the Iowa General Assembly studying the state administrative procedure act that the phrase “required by Constitution or statute” replace the “required by law” language contained in the 1961 Model State Administrative Procedure Act from which the Iowa Administrative Procedure Act had originally drawn its language. The effect of this recommendation was to exclude agency rules, regulations or policies as sources of law sufficient to render a proceeding a contested case. A. Bonfield, supra, 63 Iowa L. Rev. 304-10.

Moreover, the federal Administrative Procedure Act’s provision regarding formal adjudications; 5 U.S.C. § 554 (a) (1992); contains language similar to the “required by statute” language in § 4-166 (2) and has been interpreted to exclude those adjudications that are required only by agency rule. The federal statute states that the provisions pertaining to formal adjudication apply “in every case of adjudication required by statute to be determined on the record after opportunity for an agency hearing.” (Emphasis added.) 5 U.S.C. § 554 (a) (1992). The United States Supreme Court has stated: “We think that the limitation to hearings ‘required by statute’in . . . the Administrative Procedure Act exempts from that section’s application only those hearings which administrative agencies may hold by regulation, rule, custom, or special dispensation; not those held by compulsion. We . . . think the limiting words . . . exempt hearings of less than statutory authority . . . .” Wong Yang Sung v. McGrath, 339 U.S. 33, 50, 70 S. Ct. 445, 94 L. Ed. 616, modified, 339 U.S. 908, 70 S. Ct. 564, 94 L. Ed. 1336 (1950).

Although § 4-166 (2) excludes a large class of agency decision-making from contested case status, it nonetheless provides that the legislature, rather than the agencies, has the primary and continuing role in deciding which class of proceedings should enjoy the full panoply of procedural protections afforded by the UAPA to contested cases, including the right to appellate review by the judiciary. Deciding which class of cases qualifies for contested case status reflects an important matter of public policy and “the primary responsibility for formulating public policy must remain with the legislature.” State v. Whiteman, 204 Conn. 98, 103, 526 A.2d 869 (1987); see Kellems v. Brown, 163 Conn. 478, 491, 313 A.2d 53 (1972), appeal dismissed, 409 U.S. 1099, 93 S. Ct. 911, 34 L. Ed. 2d 678 (1973).

On the basis of a plain reading of § 4-166 (2), which clearly manifests a legislative intention to limit contested case status to a proceeding in which an agency is statutorily required to determine a party’s legal rights or privileges, we conclude that the proceeding terminating the plaintiff’s employment was not a contested case. Consequently, Judge Norko properly dismissed the plaintiff’s administrative appeal for lack of subject matter jurisdiction.

III

Finally, the plaintiff claims that General Statutes §§ 31-51m and 31-51q serve as statutory authority for the purpose of the definition of “contested case” in General Statutes § 4-166 (2). The plaintiff argues that §§ 31-51m and 31-51q require that the agency determine the plaintiffs legal interest in continued employment with the division after an opportunity for a meaningful hearing. The record below does not indicate that the plaintiff ever advanced such a claim to either Judge Norko or Judge Freed and neither memorandum of decision addresses this claim. The complaint filed by the plaintiff merely cited § 31-51q and stated that the termination proceedings were in violation of that statute.

Even if we were to review this final claim, it is clear that the plaintiffs reliance on these statutes to mandate an administrative appeal is misplaced. Sections 31-51m and 31-51q create causes of action enforceable in Superior Court to protect employees from illegal retaliatory action. See, e.g., Skinner v. Angliker, 211 Conn. 370, 559 A.2d 701 (1989). There is nothing in either statute that suggests that an agency is required to determine a party’s legal right or privilege to public employment after an opportunity for an administrative hearing.

The judgment of the trial court, Norko, Jis affirmed.

In this opinion the other justices concurred.

       The defendants are the state gaming policy board, the state department of revenue services and its division of special revenue, and William V. Hickey, the executive director of that division.

       General Statutes § 4-183 (a) provides in relevant part: “A person who has exhausted all administrative remedies . . . and who is aggrieved by a final decision may appeal to the superior court . . . .”

       See footnote 1.

       General Statutes § 4-166 (2) provides: “ ‘Contested case’ means a proceeding, including but not restricted to rate-making, price fixing and licensing, in which the legal rights, duties or privileges of a party are required by statute to be determined by an agency after an opportunity for hearing or in which a hearing is in fact held, but does not include proceedings on a petition for a declaratory ruling under section 4-176 or hearings referred to in section 4-168 . . .

       Ultimately, in an appeal to this court, “where views of the law expressed by a judge at one stage of the proceedings differ from those of another at a different stage, the important question is not whether there was a difference but which view was right.” (Internal quotation marks omitted.) Barnes v. Schlein, 192 Conn. 732, 734, 473 A.2d 1221 (1984).

       General Statutes § 4-la provides: “Unless otherwise provided by law, any appointed official of the state . . . shall serve at the pleasure of the person or body authorized to make the appointment but no longer than the term of office of such appointing authority or until such official’s successor is appointed and qualified, whichever is longer.”

       Personnel procedure No. 1, applicable to permanent state employees, of the Pre-disciplinary Hearing Procedures of the Division of Special Revenue provides in relevant part: “Prior to the decision to terminate . . . a permanent employee . . . the employee shall receive notice and be provided an opportunity to be heard.” General Statutes § 5-196 (s) defines a permanent state employee as “an employee holding a position in the classified service under a permanent appointment or an employee holding a position in unclassified service who has served in such position for a period of more than six months . . . .” The plaintiff is a permanent state employee.

       Because we conclude that the proceedings terminating the plaintiffs employment will not qualify for contested case status under General Statutes § 4-166 (2) unless the defendants were statutorily required to determine the plaintiffs legal interest, it is unnecessary for us to address whether the personnel policy No. 1 is a regulation. Neither an agency regulation, policy or rule is sufficient to qualify a proceeding for contested case status under the UAPA.

       Connecticut does not include “required by constitution” as a basis for a “contested case” under the UAPA.

       Although the plaintiff may not appeal to the Superior Court from the administrative decision terminating his employment under the UAPA, he is not without recourse to protect any claimed unconstitutional deprivation or impairment of a property interest. The plaintiff has in fact filed a civil action in the United States District Court for the District of Connecticut, seeking damages against the defendants based upon alleged violations of 42 U.S.C. § 1983.

       General Statutes § 31-5 lm provides in relevant part: “(b) No employer shall discharge, discipline or otherwise penalize any employee because the employee, or a person acting on behalf of the employee, reports, verbally or in writing, a violation or a suspected violation of any state or federal law or regulation or any municipal ordinance or regulation to a public body, or because an employee is requested by a public body to participate in an investigation, hearing or inquiry held by that public body, or a court action. No municipal employer shall discharge, discipline or otherwise penalize any employee because the employee, or a person acting on behalf of the employee, reports, verbally or in writing, to a public body concerning the unethical practices, mismanagement or abuse of authority by such employer. The provisions of this subsection shall not be applicable when the employee knows that such report is false.
      “(c) Any employee who is discharged, disciplined or otherwise penalized by his employer in violation of the provisions of subsection (b) may, after exhausting all available administrative remedies, bring a civil action, within ninety days of the date of the final administrative determination or within ninety days of such violation, whichever is later, in the superior court for the judicial district where the violation is alleged to have occurred or where the employer has its principal office, for the reinstatement of his previous job, payment of back wages and reestablishment of employee benefits to which he would have otherwise been entitled if such violation had not occurred. An employee’s recovery from any such action shall be limited to such items, provided the court may allow to the prevailing party his costs, together with reasonable attorney’s fees to be taxed by the court. Any employee found to have knowingly made a false report shall be subject to disciplinary action by his employer up to and including dismissal.”
      General Statutes § 31-51q provides in relevant part: “Any employer, including the state and any instrumentality or political subdivision thereof, who subjects any employee to discipline or discharge on account of the exercise by such employee of rights guaranteed by the first amendment to the United States Constitution or section S, 4 or 14 of article first of the constitution of the state, provided such activity does not substantially or materially interfere with the employee’s bona fide job performance or the working relationship between the employee and the employer, shall be liable to such employee for damages caused by such discipline or discharge, including punitive damages, and for reasonable attorney’s fees as part of the costs of any such action for damages. If the eourt determines that such action for damages was brought without substantial justification, the court may award costs and reasonable attorney’s fees to the employer.”