Miller's Pond Co., LLC v. New London (concurring)
Annotate this Case
Download PDF
****************************************************** The officially released date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the officially released date appearing in the opinion. In no event will any such motions be accepted before the officially released date. All opinions are subject to modification and technical correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest print version is to be considered authoritative. The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. ****************************************************** MILLER S POND CO., LLC v. NEW LONDON CONCURRENCE SULLIVAN, C. J., concurring. I agree with the result reached by the majority, but disagree with its method of statutory analysis. This case requires us to resolve an apparent inconsistency in the antitrust statutes. While General Statutes § 35-31 (b)1 provides that the antitrust provisions of chapter 624 do not apply to activities that are specifically directed or required by a statute of this state, or of the United States, General Statutes § 35-44b2 provides that, in interpreting the antitrust provisions, the courts of this state shall be guided by interpretations given by the federal courts to federal antitrust statutes. As the defendants, the city of New London, the town of Waterford and their respective water pollution control authorities, point out, federal courts have concluded that the state action exemption applies to municipal activities that are the foreseeable result of what the statute authorizes. Electrical Inspectors, Inc. v. East Hills, 320 F.3d 110, 119 (2d Cir. 2003). The statutory authorization need not be explicit. See id. The defendants argue, in effect, that the plain and unambiguous language of both statutes cannot be given effect and, therefore, federal state action immunity standards should be read into § 35-31 (b), contrary to the plain language of that statute. The apparent inconsistency between these statutes can be reconciled, however, by application of the principle that [w]here statutes contain specific and general references covering the same subject matter, the specific references prevail over the general. 3 Galvin v. Freedom of Information Commission, 201 Conn. 448, 456, 518 A.2d 64 (1986). Because § 35-31 (b) is more specific than § 3544b, its terms should prevail in this case. Thus, there is no need to go beyond the plain and unambiguous language of the statute. See General Statutes § 1-2z ( The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered. ). Accordingly, I believe that the statutory analysis should begin and end with the application of § 1-2z. I see no need for the majority s lengthy examination of the interplay . . . between federal case law . . . governing state action immunity, and the statutory state action immunity standard set forth by § 35-31 (b) or its application of the standards set forth in Manifold v. Ragaglia, 272 Conn. 410, 419, 862 A.2d 292 (2004) (this court s fundamental objective is to ascertain and give effect to the apparent intent of the legislature [emphasis added; internal quotation marks omitted]) and Jagger v. Mohawk Mountain Ski Area, Inc., 269 Conn. 672, 679, 849 A.2d 813 (2004) (court looks to words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter [internal quotation marks omitted]). 1 General Statutes § 35-31 (b) provides: Nothing contained in this chapter shall apply to those activities of any person when said activity is specifically directed or required by a statute of this state, or of the United States. 2 General Statutes § 35-44b provides: It is the intent of the General Assembly that in construing sections 35-24 to 35-46, inclusive, the courts of this state shall be guided by interpretations given by the federal courts to federal antitrust statutes. 3 The majority applies this principle to conclude that § 35-31 (b) should apply over the more general provisions of the Sherman Act, 15 U.S.C. § 1, as construed by the federal courts. I disagree. Federal antitrust law pertaining to state action immunity is more lenient than § 35-31 (b), but is just as specific. The reason that we should not follow federal law in this case is that the provisions of § 35-31 (b) are more specific than the provisions of § 35-44b and, therefore, to the extent that there is a patent inconsistency between the plain language of § 35-31 (b) and the federal law, the provisions of § 35-44b requiring us to follow federal law do not apply. I recognize that § 35-44b requires us, as a threshold matter, to compare the plain language of § 35-31 (b) with the relevant federal law to determine whether such an inconsistency exists in the first instance. Once it has been determined that such an inconsistency exists, however, we are no longer bound by § 35-44b in construing the meaning of § 35-31 (b). The majority argues that my analysis is internally inconsistent because the canon of statutory construction providing that specific statutes prevail over more general statutes is, itself, a form of extratextual evidence . . . . I disagree. I believe that we may apply the ordinary canons of judicial construction in seeking the plain meaning of the statutory scheme. (Emphasis added.) State v. Courchesne, 262 Conn. 537, 634, 816 A.2d 562 (2003) (Zarella, J., dissenting, joined by Sullivan, C. J.). Thus, this canon informs us, before we ever look to federal law, that if there is an inconsistency between federal law and § 35-31 (b), § 35-31 (b) prevails over § 35-44b. Finally, the majority argues that the canon providing that the specific prevails over the general does not apply because § 35-31 (b) and § 35-44b are fundamentally different. At the heart of the majority s analysis, however, is its recognition that the general rule that we follow federal precedent when interpreting the Connecticut Antitrust Act does not apply when the specific text of our antitrust statutes requires us to do otherwise. See Westport Taxi Service, Inc. v. Westport Transit District, 235 Conn. 1, 15 16, 664 A.2d 719 (1995). This is an application of the very canon that the majority purports to reject. Thus, my disagreement with the majority is not with its general approach to the issue or its conclusion, but with its apparent unwillingness to state simply and explicitly that, because the language of § 35-31 (b) is plain and unambiguous, we are bound by that language and, because § 35-31 (b) is more specific than § 35-44b, we are not bound by § 35-44b.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
