Aldin Associates Ltd. Partnership v. State (Concurrence in Part & Dissent in Part)

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Aldin Associates Ltd. Partnership v. State

BISHOP, J., concurring in part and dissenting in part.
At the outset, I agree with the majority’s well articulated
history of the procedural and factual history of this
challenging appeal, and I agree, as well, with the majori-
ty’s conclusion that, given the current posture of this
matter, the trial court correctly declined to issue a writ
of mandamus. I respectfully disagree, however, with
the majority’s rejection of the alternative claim for relief
requested by the plaintiff, Aldin Associates Limited
Partnership, asking this court to engraft a burden shift-
ing scheme on the statute in question, General Statutes
§ 22a-449c, in order to effectuate its purpose. I, there-
fore, would reverse the judgment of the trial court and
remand the matter for a new trial in which the burden
is placed on the defendants, the state of Connecticut
and Katie Dykes, the Commissioner of Energy and Envi-
ronmental Protection (commissioner), to prove that
there are no other claims being actively pursued that,
pursuant to the statutory scheme, would preclude the
plaintiff’s recovery.
In declining to adopt such a scheme, the majority
noted initially that ‘‘the plaintiff has not pointed this
court to any authority or legislative history of the statu-
tory scheme that would support its position of imposing
a burden shifting requirement onto the statutes.’’ The
majority appears to conclude that such an action would
be beyond the ken of an appellate tribunal. I agree that
it is generally improper for an appellate court to insert
substantive statutory language or interpret a statute in
such a manner that would alter its meaning. The burden
shifting approach requested by the plaintiff, however,
does not present such a scenario.
What the plaintiff in this matter has asked the court
to do is neither unique nor invasive of the legislative
prerogative. To the contrary, our judiciary historically
has engrafted burden shifting requirements on statutes
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that are otherwise silent in that regard in order to make
the statutes under examination more practical, work-
able, and consistent with public policy. Perhaps primary
among such cases is the United States Supreme Court
opinion in McDonnell Douglas Corp. v. Green, 411 U.S.
792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), in which
the court imposed a burden shifting scheme on the civil
rights statute relating to employment discrimination,
namely, Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e et seq. In McDonnell Douglas Corp., the
court set forth a burden shifting scheme on any employ-
ment related claims of discrimination requiring a claim-
ant to first prove that he or she is a member of a
protected class and that the claimant has suffered from
an adverse employment action by the defendant. See
McDonnell Douglas Corp. v. Green, supra, 802. Once
that is proven, the defendant is then obligated to demon-
strate that the action was taken for a nondiscriminatory
purpose. Id. The burden then shifts back to the claimant
to show that the defendant’s claim is a pretext put
forward in order to defeat the claim of discrimination.
Id., 804–805.

This burden shifting scheme adopted by the United
States Supreme Court has been applied by our Supreme
Court without any concern for invading the province
of the legislative body, be it on separation of powers
concerns or any other basis. For example, in Craine v.
Trinity College, 259 Conn. 625, 791 A.2d 518 (2002),
our Supreme Court opined: ‘‘When a plaintiff claims
disparate treatment under a facially neutral employ-
ment policy, this court employs the burden-shifting
analysis set out by the United States Supreme Court in
McDonnell Douglas Corp. . . .’’ Id., 636. I find it particu-
larly noteworthy that, in Craine, our Supreme Court
followed the lead of the United States Supreme Court
in a discrimination suit brought not only under federal
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Aldin Associates Ltd. Partnership v. State

civil rights legislation, 29 U.S.C. § 623 (age discrimina-
tion) and 42 U.S.C. § 2000e-2 (a) (sex discrimination),
but also under an analogous Connecticut statute, Gen-
eral Statutes § 46a-60, prohibiting certain discrimina-
tory practices. See id., 627.
While this burden shifting scheme is applied in the
employment discrimination context in Connecticut, it
is not limited to that subject matter. For example, in
Ireland v. Ireland, 246 Conn. 413, 419, 717 A.2d 676
(1998), our Supreme Court imposed a burden shifting
scheme upon the requirements of General Statutes
§ 46b-56, which authorizes the court to make custody
decisions in family matters. According to the burden
shifting scheme devised by the Supreme Court, a custo-
dial parent who wishes to relocate with a child from
Connecticut has the initial burden of showing that the
intended move is for a legitimate purpose and the
intended move is reasonable in light of that purpose.
Id., 425. Once that is established, the burden then shifts
to the noncustodial parent to demonstrate that the pro-
posed move is not in the child’s best interest. Id., 426.
A close review of Ireland indicates that the court’s
rationale for imposing such a burden shifting scheme
was to render the custody statute at hand both workable
and reasonable in promoting a child’s best interest.
In the area of child protection, our Supreme Court,
in the matter of In re Zakai F., 336 Conn. 272, 276, 255
A.3d 767 (2020), engrafted a burden shifting scheme on
General Statutes § 45a-611, pertaining to guardianship
of minors. The court explained that ‘‘[t]he presumption
we have adopted [as a matter of first impression] allows
a parent to file a motion for reinstatement of guardian-
ship, and, as long as the parent can show that the rea-
sons that led to the transfer of guardianship have been
ameliorated, the parent is entitled to a rebuttable pre-
sumption that reinstatement is in the best interests of
the child.’’ Id., 289. In that case, the court noted that
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neither § 45a-611, Practice Book § 35a-20 (d), or previ-
ous decisions had addressed whether a parent was enti-
tled to a constitutional presumption that reinstatement
was in the best interest of a child. Id., 285. Nevertheless,
it concluded further that, pursuant to that presumption,
the burden shifted to the nonparent to rebut the best
interest presumption by clear and convincing evidence.
Id., 289, 304.
Additionally, our Supreme Court in State v. Swebi-
lius, 325 Conn. 793, 801, 807–808, 159 A.3d 1099 (2017),
imposed a burden shifting scheme on General Statutes
(Rev. to 2007) § 54-193 (b) in a situation in which a
criminal defendant has alleged that an arrest warrant
was not served timely upon him. The court opined:
‘‘Specifically, we hold that, once the defendant has dem-
onstrated his availability for arrest, he has done all that
is required to carry his burden; the burden then shifts
to the state to demonstrate that any period of delay in
executing the warrant was not unreasonable.’’ Id., 804.
Respectfully, I believe this nonexhaustive elucidation
of examples is adequate evidence that our Supreme
Court has not hesitated to engraft a burden shifting
scheme on a particular statute, or statutory scheme, in
order to render the provisions of the statute under
review both practical and reasonable. See Ireland v.
Ireland, supra, 246 Conn. 420–21 (courts have common-
law adjudicatory authority to create burden shifting
scheme). Such, I believe, is the situation we face.
‘‘Lord Coke begins his First Institute of the Laws of
England with the following: Reason is the life of the
law, nay, the common law itself is nothing else but
reason.’’ (Internal quotation marks omitted.) Prowant
v. Kings-X, Inc., 184 Kan. 413, 417, 337 P.2d 1021 (Jack-
son, J., dissenting), rev’d on rehearing, 185 Kan. 602,
347 P.2d 254 (1959); see also Peck v. Conder, 540 S.W.2d
10, 12 (Ky. 1976) (Jones, J., dissenting) (same). In an
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often cited treatise, The Nature of the Judicial Process,
Justice Benjamin N. Cardozo famously stated: ‘‘The final
cause of law is the welfare of society. The rule that
misses its aim cannot permanently justify its existence.
. . . [W]hen [judges] are called upon to say how far
existing rules are to be extended or restricted, they
must let the welfare of society fix the path, its direction
and its distance.’’ B. Cardozo, The Nature of the Judicial
Process (1921), pp. 66–67; see also People v. Hickman,
12 Ill. App. 3d 412, 417, 297 N.E.2d 582 (1973), aff’d, 59
Ill. 2d 89, 319 N.E.2d 511 (1974), cert. denied, 421 U.S.
913, 95 S. Ct. 1571, 43 L. Ed. 2d 779 (1975); Common-
wealth v. Redline, 391 Pa. 486, 533–34, 137 A.2d 472
(1958) (Bell, J., dissenting).
I believe Cardozo’s admonition is appropriate to the
case before us. Here, the plaintiff has proven that it is
entitled to payment of its claims under the underground
storage tank program. For sure, its applications have
been approved. Additionally, it is undisputed that the
program, although now discontinued, has funds
remaining to satisfy the plaintiff’s claims. But, the
majority holds the plaintiff is not entitled to require the
state to pay its claims in spite of the applicable statute’s1
direction that approved claims should be paid, simply
because the state has indicated that other claims have
been made that have a priority over the plaintiff’s. As
a consequence, the impact of the majority’s opinion is
that the state need not pay the plaintiff’s valid claims
and the parties are at an impasse.
In short, the consequence of the majority’s opinion
and the state’s position is the anomalous result that the
1
The statute in question specifically provides that ‘‘[t]he program shall
provide money for reimbursement or payment pursuant to this section
and sections 22a-449d to 22a-449i, inclusive, 22a-449p, 22a-449r and 22a-
449t, within available appropriations, to responsible parties . . . for costs,
expenses and other obligations paid or incurred . . . .’’ (Emphasis added.)
General Statutes § 22a-449c (a) (2).
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state need not pay a deserving claim simply by asserting
that there are other pending claims with a priority over
the plaintiff’s claims regardless of whether any of those
other claims are being pursued or are under active
consideration by the state. Surely that is not the intent
of this legislation, which, this court previously has
stated, was to ameliorate the harm caused by deteriorat-
ing underground storage tanks leaking fuel into the
ground.2 Given those facts, I believe, respectfully, that
the plaintiff’s assertion that once it has established its
entitlement for payment of its claims, the burden should
shift to the state to show not only that other claims
have been filed, but that there are other claims being
pursued and under active consideration by the state that,
if granted, would extinguish the program’s remaining
funds.
The majority’s second basis for rejecting the plain-
tiff’s claims relates to mandamus as a rare process only
carefully employed. I have no disagreement with the
majority’s recital of decisional law demonstrating its
point, but I do not agree with its conclusion. If this
matter were to be remanded to the trial court with
direction to the court to employ the burden shifting
scheme on the statute at hand, the evidence may well
make it plain that the plaintiff’s claims, already approved,
are the only viable claims before the commissioner.
2
In Aldin Associates Ltd. Partnership v. State, 209 Conn. App. 741, 269
A.3d 790 (2022), this court stated: ‘‘In 1989, the General Assembly enacted
legislation titled ‘An Act Concerning Underground Storage Tanks’ (act),
which established the underground storage tank petroleum clean-up fund
(fund). See Public Acts 1989, No. 89-373 (P.A. 89-373), codified as amended
at General Statutes (Rev. to 1991) § 22a-449a et seq. Initially, the act provided
that the fund shall be credited one third of the tax imposed on gross earnings
derived from the sale of petroleum products under General Statutes § 12-
587 and that the fund is to be used by the commissioner to reimburse
responsible parties for costs incurred in remediating leaking underground
storage tanks. . . . The act was amended several times during the years
following its enactment in 1989.’’ (Citations omitted; footnote omitted.)
Aldin Associates Ltd. Partnership v. State, supra, 744.
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Additionally, since the program has been terminated,
no further claims may be made. In that circumstance,
an order from the court to the state to disburse the
remaining funds would require no more than a ministe-
rial act by the commissioner and is consistent with the
statute’s direction that payment be made on approved
claims with priority over all others.
In the case at hand, the public policy of the act estab-
lishing the fund is based on environmental concerns
and to encourage businesses to improve the safety of
fuel storage tanks that risk polluting the soil. The plain-
tiff’s claims would serve that purpose. Accordingly, I
respectfully concur in part and dissent in part.