Board of Education v. Bridgeport ( 2019 )

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BOARD OF EDUCATION OF THE TOWN OF
STRATFORD ET AL. v. CITY OF
BRIDGEPORT ET AL.
(AC 40525)
Keller, Prescott and Harper, Js.
Syllabus
The plaintiff boards of education for the towns of Stratford, Trumbull and
Monroe, and the plaintiff F, a Stratford resident, brought this action
against the defendants, the State Board of Education, the Commissioner
of Education, the Board of Education of the City of Bridgeport, the
city of Bridgeport, the mayor of Bridgeport and Bridgeport’s interim
superintendent of schools, seeking, inter alia, a declaratory judgment
and injunctive relief in connection with the commissioner’s authorizing,
pursuant to statute (§ 10-264l [m] [2]), the Bridgeport board to charge
neighboring school districts $3000 per year in tuition for each nonresi-
dent student who attended the city’s interdistrict magnet schools. In
their six count complaint, the plaintiffs alleged, in count one, that the
commissioner did not apply the criteria set forth in § 10-264l (m) (2),
various constitutional challenges to § 10-264l (m) (2) in counts two
through four, unjust enrichment in count five and civil theft as to the
Bridgeport defendants in count six. The trial court granted the defen-
dants’ motions to dismiss and render judgment thereon dismissing all
counts of the complaint for lack of subject matter jurisdiction on the
ground that the plaintiffs failed to exhaust their administrative remedies
pursuant to the statute (§ 4-176) that permits any person to petition an
agency for a declaratory ruling as to the applicability of a statute to
specified circumstances. On the plaintiffs’ appeal to this court, held:
1. The plaintiffs could not prevail on their claim that the trial court erred
by dismissing counts one through four of their compliant against the
state defendants for lack of subject matter jurisdiction for their failure
to exhaust their administrative remedies:
a. The trial court properly dismissed count one of the complaint, the
plaintiffs having failed to exhaust their administrative remedies; the
claim in count one, which sought a declaratory ruling as to the applicabil-
ity of § 10-264l (m) (2) to the alleged circumstances, was the type of
claim that the state board’s hearing process was designed and intended
to address, and, contrary to the plaintiffs’ contention, the allegations in
count one were not the type of special circumstances that our courts
have determined warrant an exception to the exhaustion requirement,
and, therefore, the plaintiffs had an available administrative process to
challenge the commissioner’s decision to authorize the charge of tuition,
and their failure to exhaust this available process prior to commencing
the present action divested the trial court of subject matter jurisdiction
over count one.
b. The trial court properly dismissed counts two, three and four of the
complaint, which raised various as applied constitutional challenges to
§ 10-264l (m) (2), the plaintiffs having failed to exhaust their administra-
tive remedies as to those counts; because the state board, which, pursu-
ant to § 4-176, has the power to interpret statutes, was well positioned
to provide the plaintiffs with the very relief that they sought in the trial
court if they had brought a petition for a declaratory ruling, and the
plaintiffs failed to sufficiently show how it would have been demonstra-
bly futile to file a petition for a declaratory ruling with the state board,
the plaintiffs did not avail themselves of the administrative process
available to them and their failure to do so divested the trial court of
subject matter jurisdiction over those counts of the complaint.
2. The trial court properly dismissed count six of the plaintiff’s complaint,
which alleged that the Bridgeport defendants committed civil theft in
violation of the applicable statutes (§§ 52-564 and 53a-119 [1], [2], [3]
and [6]), as that claim was not ripe for review, and, therefore, the court
lacked subject matter jurisdiction over it; although the plaintiffs claimed
that the ripeness doctrine did not bar their civil theft claim because
they sought injunctive relief to prevent the city from unlawfully misap-
propriating the tuition moneys under color of state law and that requiring
them to wait until the Bridgeport defendants unlawfully are in receipt
of the money would render moot any claim for injunctive relief, injunc-
tive relief was not a remedy available to the plaintiffs under § 52-564,
which provides that a party aggrieved under the statute is entitled to
treble damages, and the record clearly indicated that no payment for
the tuition had in fact been paid out by the plaintiff boards to the
Bridgeport defendants and no invoice for tuition had even been sent to
the plaintiff boards at the time the Bridgeport defendants filed their
motion to dismiss, and, therefore, it was apparent that the plaintiffs had
not suffered an injury sufficient to give rise to the alleged civil theft,
particularly, in light of their failure to allege that the Bridgeport defen-
dants intentionally deprived them of their property.
Argued January 31—officially released July 23, 2019
Procedural History
Action for, inter alia, a declaratory judgment that the
defendants’ request to charge certain tuition to certain
school districts for nonresident students who attend
certain magnet schools is erroneous and unlawful, and
for other relief, brought to the Superior Court in the
judicial district of Fairfield, where the Board of Educa-
tion of the Town of Monroe was added as a party plain-
tiff; thereafter, the court, Bellis, J., granted the defen-
dants’ motions to dismiss and rendered judgment
thereon, from which the plaintiffs appealed to this
court. Affirmed.
Daniel L. Healy, with whom, on the brief, was Nor-
man A. Pattis, for the appellants (plaintiffs).
Ralph E. Urban, assistant attorney general, with
whom, on the brief, were William Tong, attorney gen-
eral, and George Jepsen, former attorney general, for the
appellees (defendant State Board of Education et al.)
John R. Mitola, associate city attorney, for the appel-
lees (named defendant et al.).
Opinion
KELLER, J. The plaintiffs, the Board of Education of
the Town of Stratford, James Feehan,1 the Board of
Education of the Town of Trumbull, and the Board of
Education of the Town of Monroe, appeal from the
judgment of the trial court granting the motions to dis-
miss filed by the defendants, the State Board of Educa-
tion (state board); the Commissioner of Education
(commissioner); the Board of Education of the City of
Bridgeport (Bridgeport board); the city of Bridgeport
(city); Joseph Ganim, the mayor of the city; and Aresta
Johnson, the interim superintendent of the city’s
schools.2 On appeal, the plaintiffs claim that the trial
court erred by (1) dismissing counts one, two, three,
and four of their complaint against the state defendants
for lack of subject matter jurisdiction for failing to
exhaust their administrative remedies, and (2) dismiss-
ing count six, a civil theft claim against the Bridgeport
defendants, for lack of subject matter jurisdiction for
failing to exhaust their administrative remedies. For the
reasons discussed herein, we affirm the judgment of
the trial court.
In their verified complaint dated March 16, 2017, the
plaintiffs alleged the following facts. The city, the
Bridgeport board, and Johnson operate two interdistrict
magnet schools, Fairchild Wheeler Interdistrict Magnet
School (Fairchild Wheeler) and Interdistrict Discovery
Magnet Elementary School (Discovery). The plaintiff
boards are required, pursuant to General Statutes § 10-
220d, to permit operators of interdistrict magnet
schools to recruit students from their districts to attend
magnet schools in other districts. Fairfield Wheeler and
Discovery, which began operations in 2013, currently
serve children from the plaintiffs’ districts, in addition
to others.
Fairfield Wheeler and Discovery, heretofore, have
been operated exclusively with state funds. During the
2016–2017 school year, the parties learned that the state
would reduce its grants to these magnet schools by
approximately $500,000. On June 30, 2016, Frances Rab-
inowitz, the predecessor to Johnson as interim superin-
tendent of the city’s schools, wrote a letter to the com-
missioner requesting permission for the city to bill
neighboring districts $3000 a year for each nonresident
student who attended the magnet schools. By letter
dated August 31, 2016, the commissioner granted this
request. The plaintiffs alleged that the commissioner’s
approval of the request to charge outside school dis-
tricts would result in approximately $1,818,000 in reve-
nue for the city’s public school system. This revenue
would result in the school system receiving $1,215,000
from the plaintiffs alone, which is $715,000 more than
is required to replenish the $500,000 cutback in state
funding.3
Furthermore, the plaintiffs alleged that the Bridge-
port board commingles its operating accounts with the
city’s general municipal operating accounts. They
alleged that this commingling permits the Bridgeport
public school district and the city to convert or misap-
propriate the moneys supplied by the plaintiffs for the
purpose of interdistrict magnet school operation to pay
for nonmagnet school and noneducational expenses,
such as general municipal operating expenses.
The plaintiffs set forth six counts in their complaint.
They claimed that (1) the commissioner did not apply
the criteria set forth in General Statutes § 10-264l (m)
(2)4 (count one); (2) § 10-264l (m) (2) violates principles
of due process as set forth in article first, §§ 1, 2, 8, 10,
11, 18, and 20, of the Connecticut constitution (count
two); (3) § 10-264l (m) (2) exceeds the powers implicitly
and explicitly granted to the General Assembly in article
eighth, § 1, of the Connecticut constitution (count
three); (4) § 10-264l (m) (2) violates the plaintiffs’ right
to home rule in violation of article tenth, § 1, of the
Connecticut constitution (count four); (5) unjust
enrichment (count five); and (6) civil theft as to the
Bridgeport defendants (count six).
On March 24, 2017, the state defendants filed a motion
to dismiss, inter alia, counts one through four of the
plaintiffs’ complaint for lack of subject matter jurisdic-
tion on the basis that the plaintiffs failed to exhaust
their administrative remedies contained in General Stat-
utes § 4-176.5 On April 12, 2017, the Bridgeport defen-
dants also filed a motion to dismiss the plaintiffs’ com-
plaint in its entirety on the basis that the court lacked
subject matter jurisdiction over the plaintiffs’ claims
against them. After receiving memoranda of law in sup-
port of and in opposition to the motions, the court heard
oral argument regarding both motions to dismiss on
April 24, 2017.
In a memorandum of decision dated May 10, 2017, the
court granted the state defendants’ motion to dismiss
counts one, two, three, and four of the plaintiffs’ com-
plaint for lack of subject matter jurisdiction on the basis
that the plaintiffs failed to exhaust their administrative
remedies pursuant to § 4-176 prior to commencing the
present action. With respect to count five, the dismissal
of which is not challenged in this appeal, the court
acknowledged that the plaintiffs had conceded that the
plaintiffs’ unjust enrichment claim against the state
defendants was barred by the doctrine of sovereign
immunity.
In a separate memorandum of decision dated May
23, 2017, the court recognized that the Bridgeport defen-
dants, in their memorandum of law in support of their
motion to dismiss, had expressly adopted the same
arguments that had been set forth by the state defen-
dants with respect to counts one, two, three, and four.
Resultantly, in granting the Bridgeport defendants’
motion to dismiss with respect to these counts, the
court adopted the same reasoning concluding that the
plaintiffs failed to exhaust their administrative remedies
contained in § 4-176. With respect to counts five and
six as alleged against the Bridgeport defendants, the
court similarly concluded that it lacked subject matter
jurisdiction over their claims because the plaintiffs
failed to exhaust their administrative remedies. This
appeal followed.
As a preliminary matter, we begin by setting forth
the principles of law governing our standard of review.
‘‘In an appeal from the granting of a motion to dismiss
on the ground of subject matter jurisdiction, this court’s
review is plenary.’’ (Internal quotation marks omitted.)
Walenski v. Connecticut State Employees Retirement
Commission, 185 Conn. App. 457, 464, 197 A.3d 443,
cert. denied, 330 Conn. 951, 197 A.3d 390 (2018). This
court must decide whether the trial court’s ‘‘conclusions
are legally and logically correct and find support in the
facts that appear in the record. . . . It is a familiar
principle that a court which exercises a limited and
statutory jurisdiction is without jurisdiction to act
unless it does so under the precise circumstances and
in the manner particularly prescribed by the enabling
legislation.’’ (Internal quotation marks omitted.) Id.,
464–65.
‘‘When a . . . court decides a jurisdictional question
raised by a pretrial motion to dismiss, it must consider
the allegations of the complaint in their most favorable
light. . . . In this regard, a court must take the facts
to be those alleged in the complaint, including those
facts necessarily implied from the allegations, constru-
ing them in a manner most favorable to the pleader.
. . . Further, in addition to admitting all facts well
pleaded, the motion to dismiss invokes any record that
accompanies the motion, including supporting affida-
vits that contain undisputed facts.’’ (Citation omitted;
internal quotation marks omitted.) Metropolitan Dis-
trict v. Commission on Human Rights & Opportuni-
ties, 180 Conn. App. 478, 485, 184 A.3d 287, cert. denied,
328 Conn. 937, 184 A.3d 267 (2018).
This appeal concerns the proper application of the
exhaustion doctrine. ‘‘It is a settled principle of adminis-
trative law that if an adequate administrative remedy
exists, it must be exhausted before the Superior Court
will obtain jurisdiction to act in the matter.’’ (Internal
quotation marks omitted.) Stepney, LLC v. Fairfield,
263 Conn. 558, 563, 821 A.2d 725 (2003). In other words,
‘‘a trial court lacks subject matter jurisdiction over an
action that seeks a remedy that could be provided
through an administrative proceeding, unless and until
that remedy has been sought in the administrative
forum.’’ (Internal quotation marks omitted.) Republican
Party of Connecticut v. Merrill, 307 Conn. 470, 477, 55
A.3d 251 (2012). In the absence of exhaustion of that
remedy, the action must be dismissed. Piteau v. Board
of Education, 300 Conn. 667, 678, 15 A.3d 1067 (2011).
Thus, ‘‘where a statute has established a procedure to
redress a particular wrong, a person must follow the
specified remedy and may not institute a proceeding
that might have been permissible in the absence of such
a statutory procedure.’’ Norwich v. Lebanon, 200 Conn.
697, 708, 513 A.2d 77 (1986).
‘‘A primary purpose of the doctrine is to foster an
orderly process of administrative adjudication and judi-
cial review, offering a reviewing court the benefit of
the agency’s findings and conclusions. It relieves courts
of the burden of prematurely deciding questions that,
entrusted to an agency, may receive a satisfactory
administrative disposition and avoid the need for judi-
cial review. . . . Moreover, the exhaustion doctrine
recognizes the notion, grounded in deference to [the
legislature’s] delegation of authority to coordinate
branches of [g]overnment, that agencies, not the courts,
ought to have primary responsibility for the programs
that [the legislature] has charged them to administer.
. . . Therefore, exhaustion of remedies serves dual
functions: it protects the courts from becoming unnec-
essarily burdened with administrative appeals and it
ensures the integrity of the agency’s role in administer-
ing its statutory responsibilities.’’ (Internal quotation
marks omitted.) Coyle v. Commissioner of Revenue
Services, 142 Conn. App. 198, 206, 69 A.3d 310 (2013),
appeal dismissed, 312 Conn. 282, 91 A3d 902 (2014).
I
The plaintiffs first claim that the court erred in dis-
missing counts one through four of their complaint for
lack of subject matter jurisdiction on the basis that they
failed to exhaust their administrative remedies. The
plaintiffs do not dispute that there was an administra-
tive process available to them pursuant to § 4-176 (a).
They also do not dispute that they did not avail them-
selves of that process. Rather, the plaintiffs argue that
they were not required to exhaust their administrative
remedies through this process because ‘‘the claims
against the state defendants . . . involve the ‘special
circumstances’ exception [to the exhaustion doctrine],
or, in the alternative, the constitutional question excep-
tion to the exhaustion requirement . . . .’’
Our Supreme Court repeatedly has held that ‘‘when
a plaintiff can obtain relief from an administrative
agency by requesting a declaratory ruling pursuant to
§ 4-176, the failure to exhaust that remedy deprives the
trial court of subject matter jurisdiction over an action
challenging the legality of the agency’s action.’’ Republi-
can Party of Connecticut v. Merrill, supra, 307 Conn.
478, citing Polymer Resources, Ltd. v. Keeney, 227
Conn. 545, 557–58, 630 A.2d 1304 (1993) (plaintiff’s
claim for injunctive relief barred by exhaustion doctrine
because plaintiff failed to seek declaratory ruling from
Commissioner of Environmental Protection pursuant to
§ 4-176). The exhaustion doctrine, however, like many
judicial doctrines, is subject to several exceptions. See
Stepney, LLC v. Fairfield, supra, 263 Conn. 565. These
exceptions have been employed infrequently and used
only for narrowly defined purposes ‘‘such as when
recourse to the administrative remedy would be futile
or inadequate.’’ (Internal quotation marks omitted.) Id.
Our Supreme Court has made clear that ‘‘a plaintiff
may not circumvent the requirement to exhaust avail-
able administrative remedies merely by asserting a con-
stitutional claim. . . . [S]imply bringing a constitu-
tional challenge to an agency’s actions will not
necessarily excuse a failure to follow an available statu-
tory appeal process. . . . [D]irect adjudication even of
constitutional claims is not warranted when the relief
sought by a litigant might conceivably have been
obtained through an alternative [statutory] procedure
. . . which [the litigant] has chosen to ignore. . . .
[W]e continue to limit any judicial bypass of even color-
able constitutional claims to instances of demonstrable
futility in pursuing an available administrative rem-
edy. . . .
‘‘Limiting the judicial bypass of colorable constitu-
tional claims to those instances of demonstrable futility
is consistent with our duty to eschew unnecessarily
deciding constitutional questions . . . . Pursuant to
that duty, we must limit circumvention of administra-
tive proceedings to instances in which those proceed-
ings would be futile because no adequate administrative
remedy exists. Moreover, the mere assertion in an
administrative proceeding of a constitutional challenge
to a statute or agency procedure does not automatically
satisfy the futility exception to the exhaustion doctrine.
To determine whether a party properly may seek court
intervention prior to the completion of administrative
proceedings, we examine whether the court has been
asked to address issues entrusted to the [commissioner]
and whether the [commissioner] could issue appro-
priate relief.’’ (Citations omitted; internal quotation
marks omitted.) St. Paul Travelers Cos. v. Kuehl, 299
Conn. 800, 813–14, 12 A.3d 852 (2011).
A
With respect to count one of the plaintiffs’ complaint,
which alleged that the commissioner failed to comply
with § 10-264l (m) (2) in rendering her initial authoriza-
tion allowing the Bridgeport board to charge $3000 in
tuition per pupil to the suburban school districts send-
ing students to Fairfield Wheeler and Discovery, the
plaintiffs essentially argue that, although on its face
count one ‘‘looks and sounds like the very sort of issue
the [state] board’s hearing process was designed and
intended to address,’’ the ‘‘complaint as a whole sounds
in the use of the education financing statute as a form
of indirect taxation.’’ They argue that this tuition
amounts to indirect taxation and is not the sort of issue
that the state board’s hearing process was designed to
address. The plaintiffs acknowledge that count one
does not raise a constitutional question, but they con-
tend that the facts of the present case constitute special
circumstances warranting an exception to the exhaus-
tion requirement as our appellate courts have recog-
nized in other instances.
In support of their arguments, the plaintiffs direct our
attention to our Supreme Court’s decisions in Stepney
Pond Estates, Ltd. v. Monroe, 260 Conn. 406, 797 A.2d
494 (2002), and McKinney v. Coventry, 176 Conn. 613,
410 A.2d 453 (1979). In both cases, the court considered
a collateral challenge to the imposition of a tax based
on the plaintiffs’ claims that the tax in those cases were
unconstitutional. In Stepney Pond Estates, Ltd., the
court determined, on the basis of the rationale set forth
in McKinney, that the trial court did not lack jurisdic-
tion to hear the claim because the plaintiff ‘‘challenge[d]
the validity of the tax in the first instance,’’ not that the
tax ‘‘was improperly calculated.’’ Stepney Pond Estates,
Ltd. v. Monroe, supra, 420.
The plaintiffs acknowledge that Stepney Pond
Estates, Ltd., and McKinney are not ‘‘perfect fits’’ with
respect to count one. We agree with them to that extent.
It is clear from the language of count one that the
plaintiffs are not challenging the constitutionality of
the statute itself; they explicitly acknowledge in their
appellate brief that count one is not constitutional in
nature. Thus, it appears that the plaintiffs’ reliance on
Stepney Pond Estates, Ltd., and McKinney, which
involved facial constitutional challenges to tax statutes,
is misplaced with respect to count one. Nevertheless,
the plaintiffs argue that one of the paragraphs in count
one ‘‘frames the issue as more than mere misapplication
of a technical statute,’’ and further contend that ‘‘the
commissioner ignored the statutory requirements alto-
gether—the functional equivalent of denying a hearing,
resulting in default.’’ If anything, this argument is more
akin to a claim raised in LaCroix v. Board of Education,
199 Conn. 70, 505 A.2d 1233 (1986), where the plaintiff
alleged that the defendant board of education violated
his right to due process by failing to provide him a
hearing prior to, and for four months subsequent to,
terminating his employment contract. Even so, in light
of the facts of this case, we conclude that LaCroix is
no more availing for the plaintiffs.
We read count one of the plaintiffs’ complaint as
a challenge to the commissioner’s application of the
criteria set forth in § 10-264l (m) (2) in authorizing the
Bridgeport board to charge tuition to the suburban
school districts. Although they attempt to argue that
this count is actually a challenge to ‘‘indirect taxation’’
by the defendants and that the state board is ill equipped
to review this type of claim, our review of the allegations
in count one lead us to conclude that this is just the
type of claim that the state board’s hearing process was
designed and intended to address. As the trial court
correctly noted, the plaintiffs ‘‘[sought] a declaratory
ruling as to the applicability of § 10-264l (m) (2) to the
alleged circumstances, which is precisely the relief that
the relevant agency, namely, the state board, has the
statutory authority to provide pursuant to § 4-176 and
by way of the rules set forth in §§ 10-4-21 and 10-4-22
of the [Regulations of Connecticut State Agencies].’’6
Despite the plaintiffs’ asseverations, the allegations in
count one are not the type of special circumstances
that our courts have determined warrant an exception
to the exhaustion requirement. Simply put, the plaintiffs
had an available administrative process to challenge
the initial tuition authorization by the commissioner
where they could have informed the state board of
what they perceived to be error in the commissioner’s
decision. Their failure to exhaust this available process
prior to commencing this action divested the court of
subject matter jurisdiction over count one. See LaCroix
v. Board of Education, supra, 199 Conn. 78 (our courts
‘‘have long adhered to the rule that, where a statutory
right of appeal from an administrative decision exists,
an aggrieved party may not bypass the statutory proce-
dure and instead bring an independent action to test
the very issue which the appeal was designed to test’’
[internal quotation marks omitted]). The court, there-
fore, properly dismissed count one for lack of subject
matter jurisdiction.
B
With respect to counts two through four of their
complaint, the plaintiffs contend that each one raises
independent constitutional claims warranting an excep-
tion to the exhaustion requirement. They argue that
even if this court concluded that count one fell within
the state board’s regulatory ambit, the constitutional
claims do not. In particular, they argue that the constitu-
tional claims are independent, do not involve agency
expertise or discretion, and are the type of constitu-
tional claims our courts recognize as warranting an
exception to the exhaustion requirement. In their appel-
late brief, the plaintiffs categorize counts two through
four as follows: ‘‘Count two contends that this unusual
tax amounts to a due process violation, depriving the
[plaintiffs] of property without due process of law aris-
ing under the state constitution. Count three contends
that this tax is imposed by executive fiat, and not legisla-
tive process, in violation [of] the state constitution’s
separation of powers doctrine. Count four contends
that the tax in question is imposed in violation of the
state constitution’s home rule provision, effectively giv-
ing one town permission to tax residents of adjoining
municipalities.’’
The defendants maintain that the plaintiffs’ argu-
ments on appeal evince a complete reversal of their
characterization of the counts as represented to the trial
court. Namely, they argue that the plaintiffs repeatedly
characterized their constitutional claims as ‘‘as applied’’
before the trial court, but now, on appeal, make argu-
ments that can only be read as being ‘‘facial’’ constitu-
tional challenges. The defendants thus argue that the
plaintiffs are bound by their representations to the trial
court and may not pursue before this court a legal
theory they did not pursue before the trial court.
This court has often stated that to allow a plaintiff
to pursue one theory before the trial court and then
to press a distinctly different theory on appeal would
amount to an ambuscade of the trial court. See Jahn
v. Board of Education, 152 Conn. App. 652, 665, 99 A.3d
1230 (2014). In such instances, we have declined to
review those claims. See, e.g., AvalonBay Communi-
ties, Inc. v. Zoning Commission, 130 Conn. App. 36,
62 and n.24, 21 A.3d 926, cert. denied, 303 Conn. 909,
32 A.3d 962 (2011). To the extent that the plaintiffs are
arguing on appeal that counts two through four of their
complaint are facial constitutional challenges, we
decline to review them as such. As the defendants cor-
rectly note, the plaintiffs argued explicitly before the
trial court that counts two through four were as applied
constitutional challenges. Accordingly, we will review
whether these counts alleging as applied constitutional
caims were properly dismissed by the trial court for
the plaintiffs’ failure to exhaust available administra-
tive remedies.
The plaintiffs first rely on LaCroix v. Board of Educa-
tion, supra, 199 Conn. 70, a case in which our Supreme
Court allowed a plaintiff teacher to bring a civil action
based on a due process property right violation because
the defendant board failed to follow the process
required by the Teacher Tenure Act, General Statutes
§ 10-151 (b), when it terminated the plaintiff’s employ-
ment without first providing him a hearing. Id., 71–72.
Under the specific factual circumstances of LaCroix,
the court recognized an exception to the doctrine of
exhaustion of administrative remedies and held that
‘‘the plaintiff’s failure to follow the administrative
appeal route to challenge the . . . termination did not
preclude him from bringing a collateral judicial action to
test this basic constitutional infirmity in the [defendant]
board’s termination process.’’ Id., 81. The court
explained that two circumstances led it to that conclu-
sion: ‘‘the plaintiff’s timely request for a hearing [was]
evidence that he did not deliberately decide to bypass
the statutory appeal route, and the defendant board’s
unwillingness to provide the hearing within the statu-
tory period was a significant contributing factor in the
plaintiff’s failure to pursue a direct appeal.’’ Id. The
court explained that ‘‘the defendant’s total default
relieved the plaintiff of the obligation to pursue further
administrative steps, and permitted the plaintiff to
invoke judicial remedies to vindicate his constitutional
rights to due process.’’ Id.
Although the plaintiffs assert broadly that counts two
through four raise independent constitutional claims
warranting an exception to the exhaustion requirement
equivalent to the exception recognized in LaCroix, the
facts of the present case bear little similarity to those
of LaCroix. LaCroix involved an instance where the
court permitted a plaintiff to bring a collateral judicial
action when he did not deliberately bypass the statutory
appeal route but, instead, was constrained by the defen-
dant board’s failure to hold a timely hearing. In the
present case, however, the plaintiffs were not con-
strained or limited by the defendants in any way, and
could have availed themselves of the administrative
appeal process available to them but deliberately chose
not to. See General Statutes § 4-176.
The plaintiffs additionally rely on McKinney v. Cov-
entry, supra, 176 Conn. 613, and Stepney Pond Estates,
Ltd. v. Monroe, supra, 260 Conn. 406, for the contention
that the facts of the present case warrant an exception
to the exhaustion requirement like the ‘‘collateral chal-
lenge’’ doctrine invoked in those cases, which involved
constitutional challenges to tax statutes. The evident
flaw with the plaintiffs’ argument is the fact that they
made as applied constitutional challenges and sought
relief that could have been provided to them by the
state board.
As we noted previously, in both McKinney and Step-
ney Pond Estates, Ltd., our Supreme Court considered
collateral challenges to the imposition of a tax on the
basis of the plaintiffs’ claims that the taxes in those
cases were unconstitutional. In Stepney Pond Estates,
Ltd., the court determined, on the basis of the rationale
set forth in McKinney, that the trial court did not lack
jurisdiction to hear the claim because the plaintiff ‘‘chal-
lenge[d] the validity of the tax in the first instance,’’
not that the tax ‘‘was improperly calculated.’’ Stepney
Pond Estates, Ltd. v. Monroe, supra, 260 Conn. 420.
In the present case, however, the plaintiffs explicitly
argued before the trial court that their claims were
‘‘as applied challenge[s] and [were] not challenging the
legislation . . . .’’ Furthermore, they argued that the
law ‘‘permit[s] them to question [the commissioner’s]
interpretation and that is precisely what they are doing
in this as applied challenge.’’ Thus, the plaintiffs’ argu-
ments make clear that they were not facially challenging
the constitutionality of § 10-264l (m) (2) in the first
instance, but, rather, the constitutionality of the com-
missioner’s interpretation and calculation of the tuition
under § 10-264l (m) (2) as applied to them. Accordingly,
their constitutional challenges would not have required
the state board to strike down the statute as unconstitu-
tional—a power the state board lacks. Instead, their
challenges, when properly construed, simply would
have permitted the state board to declare that the stat-
ute could not be applied to the plaintiffs under the
particular circumstances of the present case, a power
the state board most certainly could have exercised.
The state board, to which the legislature has conferred
the power to interpret statutes and regulations pursuant
to § 4-176, was well positioned to provide the plaintiffs
with the very relief that they sought in the trial court
had they brought a petition for a declaratory ruling. See
Connecticut Mobile Home Assn., Inc. v. Jensen’s, Inc.,
178 Conn. 586, 588–89, 424 A.2d 285 (1979) (declaratory
judgment action seeking determination that certain
lease provisions violated state statute barred by exhaus-
tion doctrine because plaintiff failed to seek declaratory
ruling from real estate commission pursuant to § 4-
176, which confers on state agencies power to interpret
statutes and regulations). Moreover, our courts ‘‘con-
tinue to limit any judicial bypass of even colorable con-
stitutional claims to instances of demonstrable futility
in pursuing an available administrative remedy.’’ (Inter-
nal quotation marks omitted.) Stepney, LLC v. Fair-
field, supra, 263 Conn. 571.
The plaintiffs have not sufficiently shown how it
would have been demonstrably futile to file a petition
for a declaratory ruling with the state board. In fact,
our review of the record discloses that the process the
plaintiffs had available to them would have given them
the opportunity to challenge the commissioner’s inter-
pretation of the statute and ultimate award of tuition.7
This process could have then corrected any of the pur-
ported errors with respect to the commissioner’s inter-
pretation of the statute or the approval of the tuition
award, which would have remedied the constitutional
concerns the plaintiffs alleged in their complaint. If the
plaintiffs were not satisfied with the resolution of the
petition, they could have subsequently brought a declar-
atory judgment action in the Superior Court. See Gen-
eral Statutes § 4-183.
The plaintiffs in this case did not avail themselves of
the administrative process available to them before first
filing an action in the Superior Court. Consequently,
their failure to do so divested the court of subject matter
jurisdiction over counts two, three, and four of their
complaint.
II
The plaintiffs claim next that the court erred by dis-
missing count six, a civil theft claim against the Bridge-
port defendants, for lack of subject matter jurisdiction
for failing to exhaust their administrative remedies. We
need not, however, reach this issue because we con-
clude that the court lacked subject matter jurisdiction
over this claim for another reason, namely, because the
claim is not ripe for adjudication.8
In count six of the plaintiffs’ complaint, they alleged
that the actions of the Bridgeport defendants will at
some future point, constitute civil theft as set forth in
General Statutes §§ 52-564 and 53a-119 (1), (2), (3), and
(6).9 In particular, the plaintiffs allege that the Bridge-
port defendants (1) will embezzle insofar as they have
overstated the tuition costs necessary to operate the
magnet schools and have done so with the intent to
deprive the plaintiff boards of operating funds by misap-
propriating interdistrict magnet school revenues to
municipal operating costs that are unassociated with
the operation of the magnet schools; (2) will commit
larceny by false pretenses insofar as they are submitting
a false pretense, token, or device in the form of a request
to charge the plaintiff boards tuition that overstates the
necessary operating costs of the magnet schools; (3)
will commit larceny by false promise insofar as they
are promising to serve the students of the plaintiff
boards with $1,818,000 of tuition and only intend to
serve those students with approximately $500,000
worth of tuition; and (4) will defraud a public commu-
nity insofar as they have authorized, certified, attested,
or filed a request to charge the plaintiff boards that
they know to be false, and they are knowingly accepting
the benefits resulting from the request to charge from
a public community.
The Bridgeport defendants moved to dismiss count
six on the basis that the court lacked subject matter
jurisdiction because the plaintiffs failed to exhaust their
administrative remedies and because the plaintiffs’
claim was not ripe. The plaintiffs filed an opposition
to the Bridgeport defendants’ motion. In the court’s
memorandum of decision dated May 23, 2017, it con-
cluded that ‘‘the issue of whether the plaintiffs’ claims
are ripe for review is immaterial as the court lack[ed]
subject matter jurisdiction over the plaintiffs’ claims
because the plaintiffs . . . failed to exhaust their
administrative remedies.’’
In their principal brief on appeal, the plaintiffs argued
that they need not exhaust their administrative reme-
dies prior to bringing the underlying claim because the
state board does not have the authority to hear claims
regarding theft or misappropriation of moneys. The
Bridgeport defendants argued that the court was cor-
rect in dismissing count six on this ground. Although
the parties argued the issue of ripeness before the trial
court, there was little discussion of it in their appellate
briefs. On May 17, 2019, following oral argument before
this court, we issued an order notifying the parties that
they were permitted to file a supplemental brief on the
issue of whether the trial court lacked subject matter
jurisdiction over count six because the statutory theft
claim was not ripe. The plaintiffs, the Bridgeport defen-
dants, and the state defendants each filed a supplemen-
tal brief by the May 31, 2019 deadline.
In the defendants’ supplemental briefs, they argue
that the plaintiffs’ civil theft claim is not ripe because
the record before this court unequivocally reflects that
the Bridgeport defendants have not collected or
received any tuition from the plaintiffs, and that no
invoice for the tuition payments was even sent to the
plaintiff boards at the time the Bridgeport defendants
filed their motion to dismiss. They observe that the
plaintiffs do not dispute that they have not made any
of the payments at issue. They observe, as well, that
no theft, civil or otherwise, can occur absent the loss
of property. The plaintiffs argue, however, that the ripe-
ness doctrine does not bar the action. They argue that
the plaintiffs sought injunctive relief to prevent the city
from unlawfully misappropriating moneys under color
of state law and that requiring the plaintiffs to wait until
the Bridgeport defendants unlawfully are in receipt of
the moneys would render moot any claim for injunc-
tive relief.
‘‘[J]usticiability comprises several related doctrines,
namely, standing, ripeness, mootness and the political
question doctrine, that implicate a court’s subject mat-
ter jurisdiction and its competency to adjudicate a par-
ticular matter.’’ (Internal quotation marks omitted.)
Cadle Co. v. D’Addario, 111 Conn. App. 80, 82, 957
A.2d 536 (2008). ‘‘A case that is nonjusticiable must be
dismissed for lack of subject matter jurisdiction.’’
Mayer v. Biafore, Florek & O’Neill, 245 Conn. 88, 91,
713 A.2d 1267 (1998). ‘‘The subject matter jurisdiction
requirement may not be waived by any party, and also
may be raised by a party, or by the court sua sponte,
at any stage of the proceedings, including on appeal.’’
(Internal quotation marks omitted.) Keller v. Beck-
enstein, 305 Conn. 523, 531–32, 46 A.3d 102 (2012).
‘‘[T]he rationale behind the ripeness requirement is
to prevent the courts, through avoidance of premature
adjudication, from entangling themselves in abstract
disagreements . . . . Accordingly, in determining
whether a case is ripe, a trial court must be satisfied
that the case before [it] does not present a hypothetical
injury or a claim contingent upon some event that has
not and indeed may never transpire.’’ (Citation omitted;
internal quotation marks omitted.) Chapman Lumber,
Inc. v. Tager, 288 Conn. 69, 86–87, 952 A.2d 1 (2008).
The plaintiffs argue that the ripeness doctrine does
not bar their claim in count six because they sought
injunctive relief to prevent the city from unlawfully
misappropriating the tuition moneys under color of
state law and that requiring them to wait until the
Bridgeport defendants unlawfully are in receipt of the
moneys would render moot any claim for injunctive
relief. This argument is not persuasive. First, as stated
previously, the plaintiffs alleged in count six that the
Bridgeport defendants committed civil theft in violation
of §§ 52-564 and 53a-119 (1), (2), (3), and (6). Section
52-564 provides: ‘‘Any person who steals any property
of another, or knowingly receives and conceals stolen
property, shall pay the owner treble his damages.’’
(Emphasis added.) We have held that ‘‘[s]tatutory theft
under . . . § 52-564 is synonymous with larceny [as
provided in] . . . § 53a-119.’’ (Internal quotation marks
omitted.) News America Marketing In-Store, Inc. v.
Marquis, 86 Conn. App. 527, 544, 862 A.2d 837 (2004),
aff’d, 276 Conn. 310, 885 A.2d 758 (2005). Pursuant to
§ 53a-119, ‘‘[a] person commits larceny when, with
intent to deprive another of property or to appropriate
the same to himself or a third person, he wrongfully
takes, obtains or withholds such property from an
owner.’’
Although the plaintiffs attempt to obfuscate the issue
by arguing that dismissing count six will render moot
its claim for injunctive relief, we remind the plaintiffs
that injunctive relief is not a remedy available to them
under the statutory theft statute. See General Statutes
§ 52-564. Rather, a party aggrieved under the statute is
entitled to treble damages. General Statutes § 52-564.
In the present case, the record makes clear that no
payment for the tuition has in fact been paid out by the
plaintiff boards to the Bridgeport defendants. Addition-
ally, as the Bridgeport defendants note in their supple-
mental brief, no invoice for tuition had even been sent
to the plaintiff boards at the time they filed their motion
to dismiss. Thus, it is apparent that the plaintiffs have
not suffered an injury sufficient to give rise to the cause
of action alleged. In particular, the plaintiffs failed to
allege that the Bridgeport defendants intentionally
deprived them of their property. See Mystic Color Lab,
Inc. v. Auctions Worldwide, LLC, 284 Conn. 408, 418–
19, 934 A.2d 227 (2007) (‘‘[s]tatutory theft . . . requires
an element over and above what is necessary to prove
conversion, namely, that the defendant intentionally
deprived the complaining party of his or her property’’);
see also Deming v. Nationwide Mutual Ins. Co., 279
Conn. 745, 771–72, 905 A.2d 623 (2006) (‘‘[M]oney can
be the subject of statutory theft. . . . The plaintiffs
must establish, however, legal ownership or right to
possession of specifically identifiable moneys.’’ [Cita-
tion omitted.]). We also note that it would be impossible
for a court to treble the plaintiffs’ damages when no
damages have been incurred in the first place. On the
basis of the foregoing, we have little difficulty conclud-
ing that count six was not ripe for review and, thus,
the trial court lacked subject matter jurisdiction over
it. Accordingly, we conclude, albeit on a different juris-
dictional ground than that on which the court relied,
that the court properly dismissed count six of the plain-
tiffs’ complaint.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The complaint alleges that ‘‘Feehan is a resident and taxpayer of the
town of Stratford and a resident of the Stratford public school district.
Additionally, he is the chairman of the Stratford Board of Education.’’
2
For ease of exposition, we refer to the state board and the commissioner
as the state defendants, and to the Bridgeport board, the city, Mayor Ganim,
and Johnson, as the Bridgeport defendants. Any reference in this opinion
to the defendants, refers to all the defendants. We will, however, refer to
individual parties as necessary.
3
We note that the complaint is conspicuously devoid of any allegations
of loss with respect to Feehan as a Stratford taxpayer.
4
General Statutes § 10-264l (m) (2) provides: ‘‘For the school year com-
mencing July 1, 2015, and each school year thereafter, any interdistrict
magnet school operator that is a local or regional board of education and
did not charge tuition to a local or regional board of education for the
school year commencing July 1, 2014, may not charge tuition to such board
unless (A) such operator receives authorization from the Commissioner of
Education to charge the proposed tuition, and (B) if such authorization is
granted, such operator provides written notification on or before September
first of the school year prior to the school year in which such tuition is to
be charged to such board of the tuition to be charged to such board for
each student that such board is otherwise responsible for educating and is
enrolled at the interdistrict magnet school under such operator’s control.
In deciding whether to authorize an interdistrict magnet school operator to
charge tuition under this subdivision, the commissioner shall consider (i)
the average per pupil expenditure of such operator for each interdistrict
magnet school under the control of such operator, and (ii) the amount of
any per pupil state subsidy and any revenue from other sources received
by such operator. The commissioner may conduct a comprehensive financial
review of the operating budget of the magnet school of such operator to
verify that the tuition is appropriate. The provisions of this subdivision shall
not apply to any interdistrict magnet school operator that is a regional
educational service center or assisting the state in meeting the goals of the
2008 stipulation and order for Milo Sheff, et al. v. William A. O’Neill, et al.,
as extended, or the goals of the 2013 stipulation and order for Milo Sheff,
et al. v. William A. O’Neill, et al., as extended.’’
5
General Statutes § 4-176 provides in relevant part: ‘‘(a) Any person may
petition an agency, or an agency may on its own motion initiate a proceeding,
for a declaratory ruling as to the validity of any regulation, or the applicability
to specified circumstances of a provision of the general statutes, a regulation,
or a final decision on a matter within the jurisdiction of the agency. . . .’’
6
Section 10-4-21 of the Regulations of Connecticut State Agencies provides
in relevant part: ‘‘(a) Who May File. Any interested person(s) . . . may
petition the agency, as appropriate, to issue a declaratory ruling regarding
the validity of any regulation or the applicability to specified circumstances
of any statute, regulation or order enforced, administered or promulgated
by the agency. . . .’’ Subsection (b) of the regulation sets forth the peti-
tion requirements.
Section 10-4-22 of the Regulations of Connecticut State Agencies sets
forth the procedure following the filing of a petition for a declaratory ruling.
7
We acknowledge that the parties argued before the trial court the issue
of whether Feehan had taxpayer standing to bring an action. We agree with
the trial court, that, even if we assumed that he did have taxpayer standing,
he, like the plaintiff school boards, was required to exhaust the administra-
tive remedy of filing a petition for a declaratory ruling with the state board.
8
Although the ripeness issue was raised before the trial court, it never
decided the issue. Our Supreme Court has stated that ‘‘[o]nly in [the] most
exceptional circumstances can and will this court consider a claim, constitu-
tional or otherwise, that has not been raised and decided in the trial court.
. . . This rule applies equally to alternate grounds for affirmance.’’ (Empha-
sis added; internal quotation marks omitted) Perez-Dickson v. Bridgeport,
304 Conn. 483, 498–99, 43 A.3d 69 (2012). One such exceptional circumstance
is a claim that implicates the trial court’s subject matter jurisdiction, which
may be raised at any time and, thus, is not subject to our rules of preservation.
Id., 500 n.23; see Gerardi v. Bridgeport, 294 Conn. 461, 466–67, 985 A.2d 328
(2010). Because ripeness implicates the court’s subject matter jurisdiction;
Chapman Lumber, Inc. v. Tager, 288 Conn. 69, 86, 952 A.2d 1 (2008); it is
proper for us to consider it as an alternative ground for affirmance of the
trial court’s dismissal of count six.
9
In the plaintiffs’ memorandum of law in opposition to the defendants’
motions to dismiss, they acknowledged that, as of the date they filed the
complaint, they had made no tuition payments to the Bridgeport board.