Financial Consulting, LLC v. Commissioner of Insurance

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FINANCIAL CONSULTING, LLC, ET AL.
v. COMMISSIONER OF INSURANCE
(SC 19070)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and
Robinson, Js.
Argued January 10—officially released December 30, 2014
Andrew J. O’Keefe, with whom, on the brief, was
Joseph M. Busher, Jr., for the appellants (plaintiffs).
Patrick T. Ring, assistant attorney general, with
whom, on the brief, was George Jepsen, attorney gen-
eral, for the appellee (defendant).
Opinion
ROBINSON, J. The principal issue in this appeal is
whether the exhaustion doctrine precludes a party from
bringing a declaratory judgment action pursuant to the
Uniform Administrative Procedure Act (UAPA); see
General Statutes § 4-175;1 addressing matters that are
the subject of an administrative agency’s pending inves-
tigation of that party, prior to the commencement of
a contested case hearing in accordance with General
Statutes § 4-177.2 The plaintiffs, Financial Consulting,
LLC (Financial), Carl Reidemeister, Thomas M. Bonelli,
Thomas Moore, Jr., and Sean Wallace,3 appeal4 from the
judgment of the trial court dismissing their declaratory
judgment action against the defendant, Thomas Leo-
nardi, the Commissioner of Insurance (commissioner).
On appeal, the plaintiffs claim that the trial court
improperly concluded that: (1) they failed to exhaust
their administrative remedies before bringing this
declaratory judgment action pursuant to § 4-175,
despite the fact that they had complied with that stat-
ute’s precondition of requesting a declaratory ruling
from the commissioner in accordance with General
Statutes § 4-176;5 and (2) they failed to establish their
standing to bring this declaratory judgment action. We
conclude that the trial court had subject matter jurisdic-
tion over this declaratory judgment action because the
plaintiffs complied with the precondition to § 4-175 set
forth in § 4-176, and that the issuance of ‘‘second chance
notices’’ to the plaintiffs by the Department of Insurance
(department) pursuant to General Statutes (Supp. 2014)
§ 4-182 (c)6 did not, in the absence of a contested case
hearing instituted under § 4-177, operate to commence
agency proceedings under which they would have
administrative remedies to exhaust. We further agree
with the plaintiffs’ argument that the trial court improp-
erly determined that they were not aggrieved parties
with standing to bring this declaratory judgment action.7
Accordingly, we reverse the judgment of the trial court.
The record reveals the following undisputed facts
and procedural history.8 The plaintiffs are insurance
producers who conduct business within the state of
Connecticut and are licensees of the department. In
September, 2009, the Illinois Mutual Life Insurance
Company (Illinois Mutual) notified the department that
it was terminating the appointment of the plaintiffs as
its agents, for cause arising from the plaintiffs’ alleged
misconduct while selling life insurance policies to mili-
tary personnel. After reviewing information submitted
by Illinois Mutual, the department, pursuant to its
authority under General Statutes § 38a-16 (a), began to
investigate the plaintiffs to determine whether they had
violated any of Connecticut’s insurance laws in connec-
tion with those sales. During the course of the investiga-
tion, from January, 2011, through June, 2011, the
department issued ‘‘second chance’’ notices, pursuant
to § 4-182 (c), to each of the plaintiffs, informing them
of the allegations and offering them an opportunity to
show their compliance with the law in order to retain
their licenses.9 Subsequently, on September 12, 2011,
Reidemeister attended a conference with the depart-
ment at which he attempted to show compliance with
the insurance statutes and regulations. The depart-
ment’s investigation remains ongoing and it continues
to collect information in order to determine whether it
will bring administrative charges against the plaintiffs.10
After the department’s issuance of the § 4-182 (c)
notices to the plaintiffs, but before its conference with
Reidemeister, the plaintiffs petitioned the commis-
sioner on or about July 1, 2011, pursuant to § 4-176,
seeking declaratory rulings with respect to seven ques-
tions concerning the legality of their conduct in the sale
of life insurance policies.11 The plaintiffs averred that
these seven questions pertained to a ‘‘determination of
regulations or applicability of statutes or regulations
which threatened application interferes with, or
impairs, or threatens to interfere with or impair the legal
rights or privileges of the plaintiffs.’’ The department
received the petition by certified mail on July 5, 2011.
The commissioner subsequently took no action on
the petition.
After sixty days elapsed, the plaintiffs brought this
action pursuant to § 4-175, seeking a declaratory judg-
ment resolving seven questions similar to those posed
to the department in their request for a declaratory
ruling.12 The plaintiffs also sought injunctive relief
should the trial court, ‘‘determine that the [depart-
ment’s] proposed or threatened application or interpre-
tation of [§§ 38a-819-70 through 38a-819-75 of the
Regulations of Connecticut State Agencies] and [Gen-
eral Statutes] § 38a-816 (8) exceeds the department’s
jurisdiction or authority . . . .’’ Subsequently, the com-
missioner moved to dismiss this declaratory judgment
action, claiming that the trial court lacked subject mat-
ter jurisdiction because the plaintiffs had failed to: (1)
exhaust their administrative remedies prior to bringing
this action; and (2) plead facts sufficient to establish
their standing.
The trial court granted the commissioner’s motion
to dismiss. With respect to exhaustion, the trial court
relied on Tele Tech of Connecticut Corp. v. Dept. of
Public Utility Control, 270 Conn. 778, 855 A.2d 174
(2004), and concluded that the department’s investiga-
tion of the plaintiffs constituted an ‘‘agency proceeding’’
under the UAPA, and that the plaintiffs had available
to them administrative remedies should the department
ultimately take adverse action against their insurance
licenses. The trial court then relied on River Bend Asso-
ciates, Inc. v. Water Pollution Control Authority, 262
Conn. 84, 809 A.2d 492 (2002), and rejected the plaintiffs’
claim that §§ 4-175 and 4-176 authorized them to use
the declaratory judgment procedure to bypass the
department’s pending administrative process. Accord-
ingly, the trial court concluded that it lacked subject
matter jurisdiction because the plaintiffs had failed to
exhaust their administrative remedies. After agreeing
with the commissioner’s additional jurisdictional argu-
ment that the plaintiffs lacked standing to maintain this
declaratory judgment action,13 the trial court granted
the motion to dismiss and rendered judgment accord-
ingly. This appeal followed.
On appeal, the plaintiffs contend that the trial court
improperly concluded that: (1) they had failed to
exhaust their administrative remedies; and (2) they
lacked standing to bring this declaratory judgment
action. We address each claim in turn.
I
We begin with the plaintiffs’ claim that the trial court
improperly concluded that they had failed to exhaust
their administrative remedies prior to filing this declara-
tory judgment action pursuant to § 4-175. Relying on
Republican Party of Connecticut v. Merrill, 307 Conn.
470, 55 A.3d 251 (2012), the plaintiffs argue that the plain
language of § 4-175 does not impose any exhaustion
requirement beyond first seeking a declaratory ruling
from the administrative agency pursuant to § 4-176, a
requirement with which they had complied. The plain-
tiffs argue that the trial court improperly imported a
nonexistent exhaustion requirement into the text of § 4-
175, which contravened the purpose of that statute by
requiring them to risk their licenses by ‘‘proceed[ing]
in their business without knowing the answer to . . .
vitally important questions’’ about the application of
the governing statutes and regulations to their factual
circumstances. The plaintiffs emphasize that they ‘‘do
not have an available administrative remedy’’ for
obtaining relief from the cloud over their business and
licenses posed by the department’s pending investiga-
tion. The plaintiffs further argue that the trial court
improperly relied on River Bend Associates, Inc. v.
Water Pollution Control Authority, supra, 262 Conn.
84, because that case is distinguishable both factually,
given that the application of the regulatory scheme in
the present case threatens their ability to sell insurance
to military personnel, and legally, because it does not
involve §§ 4-175 and 4-176.
In response, the commissioner argues that, ‘‘[w]hen
an administrative agency has initiated an agency pro-
ceeding by issuing a notice to a licensee pursuant to
[§ 4-182 (c)], the licensee should not be permitted to
use [§ 4-175 or § 4-176] to obtain declaratory relief on
the very matters that are the subject of the agency’s
investigation.’’ The commissioner contends that the
trial court properly determined that, under this court’s
decision in Tele Tech of Connecticut Corp. v. Dept.
of Public Utility Control, supra, 270 Conn. 778, the
department’s issuance of ‘‘second chance’’ notices
under § 4-182 (c) during its investigation commenced
an ‘‘agency proceeding,’’ which thus required the plain-
tiffs to exhaust their administrative remedies in that
pending proceeding before going to court. The commis-
sioner emphasizes that the department’s ongoing inves-
tigation involves the plaintiffs’ past conduct, and that
the resolution of that investigation will obviate the need
for this declaratory judgment action insofar as the
department will either: (1) find no violation and take
no action against the plaintiffs, rendering any further
proceedings moot; or (2) issue a disciplinary complaint
against the plaintiffs seeking fines or license suspen-
sion, which would result in an administrative proceed-
ing with a fully developed record subject to judicial
review under the administrative appeal statute, General
Statutes § 4-183. The commissioner further contends
that the plaintiffs’ reading of §§ 4-175 and 4-176, which
would allow the plaintiffs to proceed with this declara-
tory judgment action, contravenes long settled princi-
ples of law—embodied in the primary jurisdiction
doctrine described in, inter alia, Sharkey v. Stamford,
196 Conn. 253, 492 A.2d 171 (1985)—counseling against
judicial interference in pending administrative proceed-
ings, which include statutorily authorized investi-
gations.
We agree in part with the commissioner and the plain-
tiffs, and conclude that the plaintiffs were required to
exhaust available administrative remedies with the
department prior to bringing a declaratory judgment
action under § 4-175. Because, however, the depart-
ment’s issuance of second chance notices under § 4-
182 (c) did not commence an administrative proceeding
that would give the plaintiffs access to an administrative
remedy—and a formal contested case hearing had not
yet been instituted in accordance with § 4-177—the
plaintiffs had nothing further to exhaust at the time
they brought this declaratory judgment action under
§ 4-175. Accordingly, the trial court improperly con-
cluded that it lacked subject matter jurisdiction on the
ground that the plaintiffs had failed to exhaust their
administrative remedies.
‘‘Because the exhaustion [of administrative remedies]
doctrine implicates subject matter jurisdiction, [the
court] must decide as a threshold matter whether that
doctrine requires dismissal of the [plaintiffs’] claim.
. . . [Additionally] [b]ecause [a] determination regard-
ing a trial court’s subject matter jurisdiction is a ques-
tion of law, our review is plenary. . . .
‘‘It is a settled principle of administrative law that if
an adequate administrative remedy exists, it must be
exhausted before the Superior Court will obtain juris-
diction to act in the matter. . . . Thus, exhaustion of
remedies serves dual functions: it protects the courts
from becoming unnecessarily burdened with adminis-
trative appeals and it ensures the integrity of the
agency’s role in administering its statutory responsibili-
ties. . . .
‘‘There are two ways to determine whether an admin-
istrative remedy has been exhausted. [When] 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 proce-
dure. . . . When, however, a statutory requirement of
exhaustion is not explicit, courts are guided by [legisla-
tive] intent in determining whether application of the
doctrine would be consistent with the statutory scheme.
. . . Consequently, [t]he requirement of exhaustion
may arise from explicit statutory language or from an
administrative scheme providing for agency relief.’’14
(Citations omitted; internal quotation marks omitted.)
Fairchild Heights Residents Assn., Inc. v. Fairchild
Heights, Inc., 310 Conn. 797, 807–808, 82 A.3d 602
(2014).
A
Whether the plaintiffs exhausted their administrative
remedies by requesting and failing to receive a declara-
tory ruling from the commissioner pursuant to § 4-176,
and thus were entitled to bring this action under § 4-175
despite the pendency of the department’s investigation,
raises a question of statutory construction. Accordingly,
‘‘we are guided by the well established principle that
[i]ssues of statutory construction raise questions of law,
over which we exercise plenary review. . . . The pro-
cess of statutory interpretation involves the determina-
tion of the meaning of the statutory language as applied
to the facts of the case, including the question of
whether the language does so apply. . . . When con-
struing a statute, [o]ur fundamental objective is to
ascertain and give effect to the apparent intent of the
legislature. . . . In other words, we seek to determine,
in a reasoned manner, the meaning of the statutory
language as applied to the facts of [the] case, including
the question of whether the language actually does
apply. . . . In seeking to determine that meaning, Gen-
eral Statutes § 1-2z directs us first to consider the text
of the statute itself and its relationship to other statutes.
If, after examining such text and considering such rela-
tionship, the meaning of such text is plain and unambig-
uous and does not yield absurd or unworkable results,
extratextual evidence of the meaning of the statute shall
not be considered.’’ (Internal quotation marks omitted.)
Id., 808–809.
‘‘The test to determine ambiguity is whether the stat-
ute, when read in context, is susceptible to more than
one reasonable interpretation. . . . When a statute is
not plain and unambiguous, we also look for interpre-
tive guidance to the legislative history and circum-
stances surrounding its enactment, to the legislative
policy it was designed to implement, and to its relation-
ship to existing legislation and common law principles
governing the same general subject matter . . . .’’
(Internal quotation marks omitted.) Commissioner of
Public Safety v. Freedom of Information Commission,
312 Conn. 513, 527, 93 A.3d 1142 (2014).
We begin with the relevant statutory text. Section 4-
175 (a) provides: ‘‘If a provision of the general statutes,
a regulation or a final decision, or its threatened applica-
tion, interferes with or impairs, or threatens to interfere
with or impair, the legal rights or privileges of the plain-
tiff and if an agency (1) does not take an action required
by subdivision (1), (2) or (3) of subsection (e) of section
4-176, within sixty days of the filing of a petition for a
declaratory ruling, (2) decides not to issue a declaratory
ruling under subdivision (4) or (5) of subsection (e) of
said section 4-176, or (3) is deemed to have decided
not to issue a declaratory ruling under subsection (i)
of said section 4-176, the petitioner may seek in the
Superior Court a declaratory judgment as to the validity
of the regulation in question or the applicability of the
provision of the general statutes, the regulation or the
final decision in question to specified circumstances.
The agency shall be made a party to the action.’’
The text of § 4-175 (a) does not require a party seeking
a declaratory judgment from the trial court to do any-
thing other than petition the agency for a declaratory
ruling under § 4-176 (a), and wait the appropriate length
of time under § 4-176 (e) or (i) for the agency either to
act or not to act on the request for a declaratory ruling.
The text of both §§ 4-175 and 4-176 are, however, silent
about whether the declaratory ruling and judgment pro-
cedures are available when an agency proceeding, such
as an investigation, is already pending with respect to
the conduct at issue. See footnote 5 of this opinion
for the relevant text of § 4-176. That ‘‘silence does not
necessarily equate to ambiguity. . . . Rather, [i]n
determining whether legislative silence renders a stat-
ute ambiguous, we read the statute in context to deter-
mine whether the language is susceptible to more than
one reasonable interpretation.’’ (Citations omitted;
internal quotation marks omitted.) State v. Ramos, 306
Conn. 125, 136, 49 A.3d 197 (2012).
Both parties’ interpretation of the text of § 4-175, read
in the context of the entire statutory scheme and well
established administrative law doctrines, are reason-
able—particularly in reference to the ‘‘potentially con-
flicting public policies on which they are founded.’’
Commissioner of Public Safety v. Freedom of Informa-
tion Commission, supra, 312 Conn. 534 n.19. The plain-
tiffs’ argument, namely, that no further exhaustion is
required beyond a request for a declaratory ruling in
accordance with § 4-176, is consistent with the purpose
of § 4-175, which is to aid parties in obtaining the regula-
tory guidance necessary to resolve disputes or avoid
jeopardizing their licenses by engaging in potentially
illegal activities such as, in the present case, the plain-
tiffs’ sale of certain insurance products to military per-
sonnel. The commissioner’s view of the statutory
scheme, namely, that the plaintiffs were required to
exhaust their administrative remedies in the context
of the pending agency proceedings, which he argues
commenced via the issuance of a second chance notice
of the hearing under § 4-182 (c) prior to the plaintiffs’
request for a declaratory ruling, is reasonable as well,
given that the ‘‘doctrine of exhaustion is grounded in a
policy of fostering an orderly process of administrative
adjudication and judicial review in which a reviewing
court will have the benefit of the agency’s findings and
conclusions,’’ as well as the benefit of avoiding poten-
tially unnecessary judicial review of issues resolved
at the administrative level. (Internal quotation marks
omitted.) Housing Authority v. Papandrea, 222 Conn.
414, 420, 610 A.2d 637 (1992). Accordingly, we conclude
that the statutory scheme is ambiguous, thus permitting
resort to extratextual sources pursuant to § 1-2z.
Turning to extratextual sources, we first observe that
there is no legislative history on point to illuminate how
§§ 4-175 and 4-176 operate in the context of a pending
investigation. We are, however, ‘‘mindful that when the
legislature enacts a statute, it is presumed to be aware
of the status of the law relevant to the statute. See St.
George v. Gordon, 264 Conn. 538, 553, 825 A.2d 90 (2003)
(‘legislature is presumed to have acted with knowledge
of existing statutes’ . . .); Considine v. Waterbury, 279
Conn. 830, 844, 905 A.2d 70 (2006) (‘legislature is pre-
sumed to be aware of prior judicial decisions involving
common-law rules’ . . .).’’ Rweyemamu v. Commis-
sion on Human Rights & Opportunities, 98 Conn. App.
646, 662, 911 A.2d 319 (2006), cert. denied, 281 Conn.
911, 916 A.2d 51, cert. denied, 552 U.S. 886, 128 S. Ct.
206, 169 L. Ed. 2d 144 (2007). Thus, we consider how
§§ 4-175 and 4-176 relate to Connecticut’s extensive
body of case law—such as the exhaustion and primary
jurisdiction doctrines—establishing the general princi-
ple that, whenever possible, courts will stay their hand
with respect to addressing matters that are within the
cognizance of administrative agencies. See, e.g., Fair-
child Heights Residents Assn., Inc. v. Fairchild
Heights, Inc., supra, 310 Conn. 808.
Specifically, a ‘‘primary purpose of the [exhaustion]
doctrine is to foster an orderly process of administrative
adjudication and judicial review, offering a reviewing
court the benefit of the agency’s findings and conclu-
sions. 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 judicial 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 unnecessarily burdened with administrative
appeals and it ensures the integrity of the agency’s role
in administering its statutory responsibilities.’’ (Cita-
tions omitted; internal quotation marks omitted.) Step-
ney, LLC v. Fairfield, 263 Conn. 558, 564–65, 821 A.2d
725 (2003). ‘‘Most important, a favorable outcome will
render review by the court unnecessary [because] as the
United States Supreme Court has noted: A complaining
party may be successful in vindicating his rights in the
administrative process. If he is required to pursue his
administrative remedies, the courts may never have to
intervene.’’ (Internal quotation marks omitted.) River
Bend Associates, Inc. v. Water Pollution Control
Authority, supra, 262 Conn. 103.
Consistent with the prospective nature of declaratory
relief generally, as compared to administrative or judi-
cial actions that seek to remedy past wrongs, the plain-
tiffs’ reading of the statutory scheme, providing that
the sole exhaustion step under § 4-175 is a request for
a declaratory ruling in accordance with § 4-176, is logi-
cal in the absence of an agency proceeding arising from
the conduct at issue in the request for declaratory relief.
See Republican Party of Connecticut v. Merrill, supra,
307 Conn. 484–85 (‘‘because [a group of Republicans]
sought written confirmation of the [Secretary of the
State’s] intended prospective application of the statute
shortly before initiation of the present declaratory judg-
ment action, the logical inference is that the plaintiff’s
intention was merely to obtain a statement of the [Secre-
tary of the State’s] position to support the [plaintiff’s]
entitlement to declaratory relief in the likely event that
the [Secretary of the State] declined to change the ballot
order for the 2012 election’’). This is wholly consistent
with the purpose of §§ 4-175 and 4-176, which exist to
give regulated entities the opportunity to obtain regula-
tory, and subsequently judicial, guidance with respect
to a statute, regulation, or final decision whose applica-
tion or ‘‘threatened application . . . interferes with or
impairs, or threatens to interfere with or impair, [their]
legal rights or privileges . . . .’’ General Statutes § 4-
175 (a).
The utility of that statutory procedure is, however,
largely vitiated if agency proceedings have already been
commenced with respect to the same conduct that
forms the basis for the petition for declaratory relief. An
administrative proceeding affords its subject numerous
potential remedies including: (1) an agency decision
concluding that the allegations are unsubstantiated and
that no further action is necessary, thereby mooting a
pending court case on the same point; or (2) in the
event of an agency decision imposing sanctions such
as fines, and license revocation or suspension, judicial
relief in an administrative appeal pursuant to § 4-183
from the final agency decision against them. See Fair-
child Heights Residents Assn., Inc. v. Fairchild
Heights, Inc., supra, 310 Conn. 813 (upholding dismissal
of declaratory judgment action for failure to exhaust
because association was required to request declaratory
ruling from Department of Consumer Protection that
would have been appealable via administrative appeal,
despite fact that department was aware of association’s
complaint and had addressed it using informal investi-
gation and dispute resolution procedure). Thus, once
an administrative proceeding has commenced, the pru-
dential concerns underlying the exhaustion doctrine
counsel against permitting parties to pursue a judicial
remedy such as a declaratory judgment.
Further, although there is no Connecticut case
directly on point,15 the sister state case law revealed by
our independent research supports the position of the
commissioner that the declaratory judgment proce-
dures under §§ 4-175 and 4-176 may not be used to
bypass a party’s obligation to exhaust its remedies in
the context of a pending administrative proceeding.
Particularly persuasive is the Missouri Supreme Court’s
decision in Farm Bureau Town & Country Ins. Co. v.
Angoff, 909 S.W.2d 348 (Mo. 1995) (en banc). In Angoff,
the state insurance director notified a property insurer
that he intended to commence an administrative disci-
plinary action based on allegations that the insurer had
illegally refused to insure properties in certain urban
areas in the state. Id., 351. The insurer then brought
a declaratory judgment action against the insurance
director, seeking a declaration that it ‘‘not be required
to provide insurance coverage to persons residing in
those areas of the state which it has decided not to
serve and that the director does not have jurisdiction
to compel [the insurer] to write policies in such geo-
graphical areas.’’ Id., 351–52. The insurance director
moved to dismiss the declaratory judgment action as
he simultaneously filed administrative charges against
the insurer. Id., 351. The Missouri Supreme Court
upheld the trial court’s decision to dismiss the action for
failure to exhaust administrative remedies, concluding
that a ‘‘party threatened by agency action may invoke
the court’s jurisdiction to grant declaratory judgment
against the agency. . . . However, once the adminis-
trative procedure is commenced by the agency, the
exhaustion of administrative remedies doctrine is a
compelling reason for the court to terminate the declar-
atory judgment action unless the action has advanced
to the point that dismissal will result in undue delay or
where for some other reason the administrative remedy
is inadequate.’’16 (Citations omitted.) Id., 354; see also,
e.g., Southern Minnesota Construction Co., Inc. v.
Dept. of Transportation, 637 N.W.2d 339, 344 (Minn.
App. 2002) (‘‘Before [the state Department of Transpor-
tation] instituted administrative proceedings, [the plain-
tiff] could have brought a declaratory judgment action,
but once administrative proceedings had begun, [the
plaintiff’s] right to bring a declaratory action to arrest
those proceedings was foreclosed. Once ‘enforcement’
begins, the proper judicial review is by certiorari of the
commissioner’s final determination.’’).17
B
Thus, we turn to the question of whether the depart-
ment’s issuance to the plaintiffs of second chance
notices under § 4-182 (c) in January, 2011, and June,
2011, commenced agency proceedings, for purposes of
requiring the plaintiffs to exhaust their administrative
remedies within the department, rather than seek a
declaratory judgment in court pursuant to § 4-175. Rely-
ing on Tele Tech of Connecticut Corp. v. Dept. of Public
Utility Control, supra, 270 Conn. 798–800, the commis-
sioner contends that the department’s issuance of
notices pursuant to § 4-182 (c) commenced agency pro-
ceedings in the form of a formal investigation and that,
therefore, the plaintiffs were required to exhaust their
administrative remedies rather than short-circuit that
process by seeking declaratory relief pursuant to §§ 4-
175 and 4-176. We disagree with the commissioner’s
reading of Tele Tech of Connecticut Corp., which was
adopted by the trial court, as standing for the proposi-
tion that the department’s investigation of the plaintiffs
itself constituted an agency proceeding once it issued
the second chance notices under § 4-182 (c).
Instead, we conclude that the ‘‘investigation’’18
referred to in Tele Tech of Connecticut Corp. was, in
fact, a license revocation proceeding, with the issue in
Tele Tech of Connecticut Corp. being whether a letter
sent by the agency to the regulated party advising it of
that proceeding complied with § 4-182 (c), which is
a precursor to that formal license revocation process
governed by § 4-177 (b).19 See id., 799–803; Jones v.
Connecticut Medical Examining Board, 129 Conn.
App. 575, 582, 19 A.3d 1264 (2011) (‘‘notice under § 4-
182 [c] is a precursor to the subsequent notice required
by § 4-177 [b]’’), aff’d, 309 Conn. 727, 72 A.3d 1034
(2013); see also Jones v. Connecticut Medical Examin-
ing Board, supra, 582–83 (‘‘Section 4-182 [c] requires
an agency to give a licensee, prior to the institution
of agency proceedings, written notice of conduct war-
ranting the revocation of its license and an opportunity
to show compliance with all of the legal requirements
for the retention of the license. . . . By contrast, § 4-
177 requires an agency to give the licensee notice of a
formal revocation proceeding . . . . Specifically, § 4-
177 [b] requires that notice of a contested hearing
include the following: [1] A statement of the time, place,
and nature of the hearing; [2] a statement of the legal
authority and jurisdiction under which the hearing is
to be held; [3] a reference to the particular sections of
the statutes and regulations involved; and [4] a short
and plain statement of the matters asserted. As [the
Appellate Court has] held, notice of the formal revoca-
tion hearings, after institution of the agency proceed-
ings, must comply with § 4-177, not § 4-182 [c].’’
[Citations omitted; emphasis altered; internal quotation
marks omitted.]). Thus, we conclude that, in the present
context, no agency proceeding affecting the plaintiffs’
licenses is instituted until the department commences
a contested case proceeding in accordance with § 38a-
8-60 (a) of the Regulations of the Connecticut State
Agencies,20 which implements § 4-177 (b) for licensure
matters within its jurisdiction.
In the present case, the department has not yet insti-
tuted formal license revocation proceedings, and nei-
ther the parties’ briefs, nor our independent research,
indicates that the department is under any statutory or
regulatory obligation to do so within a time certain
following the issuance of the second chance notices
under § 4-182 (c). Thus, we agree with the plaintiffs
that the cloud occasioned by the department’s investiga-
tion of their past conduct remains over their business,21
and they have to date been deprived of the opportunity
to obtain regulatory guidance with respect to the legal-
ity of that conduct in future business endeavors.22 We
conclude, therefore, that the trial court improperly dis-
missed this declaratory judgment action on the ground
that the plaintiffs had failed to exhaust their administra-
tive remedies.23
II
Because it provides an independent basis for
affirming the judgment of the trial court, we must
address the plaintiffs’ claim that the trial court improp-
erly concluded that it lacked jurisdiction because the
plaintiffs lacked standing. Noting the well established
presumption in favor of jurisdiction, the plaintiffs rely
heavily on Bysiewicz v. DiNardo, 298 Conn. 748, 6 A.3d
726 (2010), and contend that the allegations and other
filings in this case adequately establish their standing
to bring this declaratory judgment action because the
department’s application of the relevant statutes and
regulations had a ‘‘dramatic and direct impact’’ on their
livelihood from the sale of life insurance products. In
response, the department relies primarily on this court’s
decision in Connecticut Business & Industry Assn.,
Inc. v. Commission on Hospitals & Health Care, 218
Conn. 335, 589 A.2d 356 (1991), for the proposition that
declaratory judgment actions brought under § 4-175 are
subject to the same standing and aggrievement require-
ments as administrative appeals brought under § 4-183.
The department then argues that the plaintiffs failed to
establish their standing by pleading adequately either
classical aggrievement or statutory aggrievement, con-
tending that the provisions of the UAPA do not establish
statutory aggrievement, and that the plaintiffs are not
classically aggrieved because their allegations are con-
clusory and hypothetical. Although we agree with the
commissioner that the UAPA is merely procedural and
does not render the plaintiffs statutorily aggrieved, we
nevertheless conclude that the plaintiffs’ complaint and
supporting affidavits adequately establish their standing
to bring this declaratory judgment action.
Standing to bring a declaratory judgment action
under § 4-175 is consistent with the aggrievement neces-
sary to bring an administrative appeal under § 4-183, and
requires the plaintiff to ‘‘demonstrate a legal interest
in the subject matter [of a controversy] that can be
distinguished from the interest of the general public
. . . .’’ (Internal quotation marks omitted.) Id., 345.
Thus, declaratory judgment actions brought under § 4-
175 are subject to the same standing criteria as those
brought under the more general declaratory judgment
provisions, namely, General Statutes § 52-29 and Prac-
tice Book § 17-55. See id., 346–47. Thus, we note that
‘‘[i]t is a basic principle of our law . . . that the plain-
tiffs must have standing in order for a court to have
jurisdiction to render a declaratory judgment. . . .
Standing is the legal right to set judicial machinery in
motion. One cannot rightfully invoke the jurisdiction
of the court unless he [or she] has, in an individual or
representative capacity, some real interest in the cause
of action, or a legal or equitable right, title or interest
in the subject matter of the controversy. . . . When
standing is put in issue, the question is whether the
person whose standing is challenged is a proper party
to request an adjudication of the issue . . . . [Because]
[s]tanding requires no more than a colorable claim of
injury . . . a [party] ordinarily establishes . . . stand-
ing by allegations of injury [that he or she has suffered
or is likely to suffer]. Similarly, standing exists to
attempt to vindicate arguably protected interests. . . .
‘‘Put differently, an action for a declaratory judgment,
valuable as it has become in modern practice, is not a
procedural panacea for use on all occasions. . . . In
providing statutory authority for courts to grant declara-
tory relief, the legislature did not intend to broaden
their function so as to include issues which would not
be such as could be determined by the courts in ordinary
actions. . . . The declaratory judgment procedure con-
sequently may be employed only to resolve a justiciable
controversy where the interests are adverse, where
there is an actual bona fide and substantial question
or issue in dispute or substantial uncertainty of legal
relations which requires settlement. . . . A party pur-
suing declaratory relief must therefore demonstrate, as
in ordinary actions, a justiciable right in the controversy
sought to be resolved, that is, contract, property or
personal rights . . . as such will be affected by the
[court’s] decision . . . . A party without a justiciable
right in the matter sought to be adjudicated lacks stand-
ing to raise the matter in a declaratory judgment
action. . . .
‘‘Thus, [s]tanding is established by showing that the
party claiming it is authorized by statute to bring suit
or is classically aggrieved. . . . The fundamental test
for determining [classical] aggrievement encompasses
a well-settled twofold determination: first, the party
claiming aggrievement must successfully demonstrate
a specific, personal and legal interest in [the subject
matter of the challenged action], as distinguished from
a general interest, such as is the concern of all members
of the community as a whole. Second, the party claiming
aggrievement must successfully establish that this spe-
cific personal and legal interest has been specially and
injuriously affected by the [challenged action]. . . .
Aggrievement is established if there is a possibility, as
distinguished from a certainty, that some legally pro-
tected interest . . . has been adversely affected. . . .
‘‘Finally, it is well settled that [i]t is the burden of
the party who seeks the exercise of jurisdiction in his
favor . . . clearly to allege facts demonstrating that he
is a proper party to invoke judicial resolution of the
dispute. . . . It is well established that, in determining
whether a court has subject matter jurisdiction, every
presumption favoring jurisdiction should be indulged.
. . . Because a determination regarding the trial court’s
subject matter jurisdiction raises a question of law, our
review is plenary.’’ (Citations omitted; internal quota-
tion marks omitted.) Travelers Casualty & Surety Co.
of America v. Netherlands Ins. Co., 312 Conn. 714,
727–29, 95 A.3d 1031 (2014); see also Bysiewicz v.
DiNardo, supra, 298 Conn. 758–59; Connecticut Busi-
ness & Industry Assn., Inc. v. Commission on Hospi-
tals & Health Care, supra, 218 Conn. 347–48.
‘‘Jurisdiction pursuant to § 4-175, which specifically
provides for a declaratory judgment under the [UAPA]
depends on whether the plaintiffs’ rights or privileges
have been threatened or impaired. . . . Standing is not
conferred upon a plaintiff merely by virtue of the fact
that the complaint recites the provisions of the statute
under which it is brought. . . . Rather, a complaint
brought pursuant to § 4-175 must set forth facts to sup-
port an inference that a provision of the general stat-
utes, a regulation or a final decision, or its threatened
application, interferes with or impairs, or threatens to
interfere with or impair, the legal rights or privileges
of the plaintiff.’’ (Citations omitted; internal quotation
marks omitted.) Emerick v. Commissioner of Public
Health, 147 Conn. App. 292, 296–97, 81 A.3d 1217 (2013),
cert. denied, 311 Conn. 936, 88 A.3d 551 (2014); see
also Stefanoni v. Dept. of Economic & Community
Development, 142 Conn. App. 300, 319, 70 A.3d 61, cert.
denied, 309 Conn. 907, 68 A.3d 661 (2013).
Because the UAPA does not, by itself, render the
plaintiffs statutorily aggrieved for standing purposes,
we must determine whether they are classically
aggrieved. Viewing the complaint in light of the undis-
puted facts contained in the affidavits submitted by
both parties in connection with the commissioner’s
motion to dismiss; see, e.g., Conboy v. State, 292 Conn.
642, 651–52, 974 A.2d 669 (2009); we conclude that the
plaintiffs have established their standing to bring this
action. Beyond general allegations reflecting the lan-
guage of § 4-175, the plaintiffs averred specifically in
the complaint that the ‘‘statutes and regulations subject
to the petition for declaratory ruling directly relate to
the plaintiffs’ business practices and the sale of insur-
ance products, and thus they have a direct interest in the
subject matter of the requested declaratory judgment.’’
The plaintiffs also pleaded that the department’s com-
pliance division ‘‘has stated that it intends to enforce the
subject statutes and regulations against the plaintiffs
in such a fashion that such applications threaten to
interfere with or impair the plaintiffs’ legal rights or
privileges as insurance sales producers and small busi-
nessmen.’’
The other filings in connection with the complaint
and the motion to dismiss further support the plaintiffs’
standing.24 Antonio Caporale, the department’s in-house
attorney, submitted an affidavit in support of the com-
missioner’s motion to dismiss acknowledging that the
questions presented in the plaintiffs’ declaratory ruling
petition, and subsequent complaint, ‘‘related to the
events already under investigation by [the] depart-
ment,’’ thus demonstrating that the plaintiffs possess a
very personal interest in the subject matter of the pres-
ent action that is not hypothetical.25 Reidemeister
averred in his affidavit in opposition to the motion to
dismiss that the department’s position with respect to
‘‘how it intends to apply the regulations or statutes,
which are the subject of the declaratory judgment
action . . . may put me and my coworkers out of busi-
ness.’’ Additionally, Reidemeister averred that an ‘‘inter-
pretation of the regulations which may restrict or
prohibit the sale of life insurance products to military
service members will directly affect my ability and the
ability of my coworkers to continue making a living
as we have done for the past [twenty-seven] years.’’
Compare, e.g., Bysiewicz v. DiNardo, supra, 298 Conn.
760 (attorney general candidate’s ‘‘declared intention to
run for the office of attorney general and her particular
interest in avoiding the great effort and expense of
running for that office if her qualifications to serve in
that office could be successfully challenged upon her
election are sufficient to confer standing on her to bring
this [declaratory judgment] action’’), with Emerick v.
Commissioner of Public Health, supra, 147 Conn. App.
298–99 (upholding dismissal of § 4-175 declaratory judg-
ment action challenging town’s removal of diving board
at municipal pool, at behest of Department of Public
Health, because ‘‘the plaintiff has failed to allege facts
that demonstrate that he has an interest either in the
now removed diving board or in the interpretation of
the regulations concerning diving boards that is distin-
guishable from the interest of the general public’’).
Accordingly, we conclude that the trial court improp-
erly determined that the plaintiffs lacked standing to
bring this declaratory judgment action.26
The judgment is reversed and the case is remanded to
the trial court for further proceedings according to law.
In this opinion the other justices concurred.
1
General Statutes § 4-175 (a) provides: ‘‘If a provision of the general
statutes, a regulation or a final decision, or its threatened application, inter-
feres with or impairs, or threatens to interfere with or impair, the legal
rights or privileges of the plaintiff and if an agency (1) does not take an
action required by subdivision (1), (2) or (3) of subsection (e) of section 4-
176, within sixty days of the filing of a petition for a declaratory ruling, (2)
decides not to issue a declaratory ruling under subdivision (4) or (5) of
subsection (e) of said section 4-176, or (3) is deemed to have decided not
to issue a declaratory ruling under subsection (i) of said section 4-176, the
petitioner may seek in the Superior Court a declaratory judgment as to the
validity of the regulation in question or the applicability of the provision of
the general statutes, the regulation or the final decision in question to
specified circumstances. The agency shall be made a party to the action.’’
2
General Statutes § 4-177 provides in relevant part: ‘‘(a) In a contested
case, all parties shall be afforded an opportunity for hearing after reason-
able notice.
‘‘(b) The notice shall be in writing and shall include: (1) A statement of
the time, place, and nature of the hearing; (2) a statement of the legal
authority and jurisdiction under which the hearing is to be held; (3) a
reference to the particular sections of the statutes and regulations involved;
and (4) a short and plain statement of the matters asserted. If the agency
or party is unable to state the matters in detail at the time the notice is
served, the initial notice may be limited to a statement of the issues involved.
Thereafter, upon application, a more definite and detailed statement shall
be furnished. . . .’’
3
Reidemeister is the principal owner, operator and manager of Financial.
Bonelli, Moore, and Wallace are employees of Financial. Each of these
individuals is licensed to sell insurance in the state of Connecticut.
4
The plaintiffs appealed from the judgment of the trial court to the Appel-
late Court, and we transferred the appeal to this court pursuant to General
Statutes § 51-199 (c) and Practice Book § 65-1.
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. . . .
‘‘(e) Within sixty days after receipt of a petition for a declaratory ruling,
an agency in writing shall: (1) Issue a ruling declaring the validity of a
regulation or the applicability of the provision of the general statutes, the
regulation, or the final decision in question to the specified circumstances,
(2) order the matter set for specified proceedings, (3) agree to issue a
declaratory ruling by a specified date, (4) decide not to issue a declaratory
ruling and initiate regulation-making proceedings, under section 4-168, on
the subject, or (5) decide not to issue a declaratory ruling, stating the reasons
for its action. . . .
‘‘(h) A declaratory ruling shall be effective when personally delivered or
mailed or on such later date specified by the agency in the ruling, shall have
the same status and binding effect as an order issued in a contested case
and shall be a final decision for purposes of appeal in accordance with the
provisions of section 4-183. A declaratory ruling shall contain the names of
all parties to the proceeding, the particular facts on which it is based and
the reasons for its conclusion.
‘‘(i) If an agency does not issue a declaratory ruling within one hundred
eighty days after the filing of a petition therefor, or within such longer period
as may be agreed by the parties, the agency shall be deemed to have decided
not to issue such ruling. . . .’’
6
General Statutes (Supp. 2014) § 4-182 (c) provides: ‘‘No revocation, sus-
pension, annulment or withdrawal of any license is lawful unless, prior to
the institution of agency proceedings, the agency gave notice by mail to the
licensee of facts or conduct which warrant the intended action and the
specific provisions of the general statutes or of regulations adopted by the
agency that authorize such intended action, and the licensee was given an
opportunity to show compliance with all lawful requirements for the reten-
tion of the license. If the agency finds that public health, safety or welfare
imperatively requires emergency action, and incorporates a finding to that
effect in its order, summary suspension of a license may be ordered pending
proceedings for revocation or other action. These proceedings shall be
promptly instituted and determined.’’
We note that § 4-182 (c) was amended by No. 13-279, § 3, of the 2013
Public Acts, which made certain changes to the statute that are not relevant
to this appeal. In the interest of simplicity, we refer to the 2014 supplement
of the statute.
7
We disagree with the commissioner’s proffered alternative ground for
affirmance, which is a jurisdictional attack on each of the questions posed
by the plaintiffs in their complaint seeking declaratory relief. See footnote
26 of this opinion.
8
In setting forth the undisputed facts and procedural history underlying
this appeal, we, like the trial court, consider the plaintiffs’ complaint and
affidavits filed pursuant to Practice Book § 10-31 (a), which were executed
by Antonio Caporale, an attorney employed by the department, and Reide-
meister. See, e.g., Conboy v. State, 292 Conn. 642, 651–52, 974 A.2d 669 (2009).
9
In explaining § 4-182 (c), we have stated that ‘‘the ‘opportunity to show
compliance’ provision represents a ‘second chance’ doctrine, which allows
a licensee the opportunity to ‘put its house in lawful order before more
formal agency proceedings are undertaken.’ ’’ Tele Tech of Connecticut Corp.
v. Dept. of Public Utility Control, 270 Conn. 778, 802, 855 A.2d 174 (2004).
10
Antonio Caporale, the department’s in-house attorney; see footnote 8
of this opinion; indicated in writing that, as of August 11, 2011, no charges
had been filed, meaning that the plaintiffs had ‘‘no necessity, and no right
to raise,’’ a defense to any potential violations.
11
The plaintiffs sought, inter alia, declaratory rulings resolving the follow-
ing questions, and provided the commissioner with explanations of their
position with respect to the merits of those questions: (1) Does the depart-
ment ‘‘have jurisdiction or authority to enforce or expand a [United States]
Navy ‘policy,’ directed at naval personnel, concerning activities conducted
on naval installations, by naval personnel, to wit: a ‘[seven]-day cooling-off
period’ prior to submitting an allotment form for processing by [Defense
Financing and Accounting Services]?’’
(2) ‘‘May insurance producers sell supplemental life insurance products
(which contain no ‘side funds’ as defined by regulation and contain no ‘war
exclusions’) to members of the military service, who [are eighteen] years
of age or older, married or unmarried who are with or without dependents
or substantial assets?’’
(3) ‘‘Do [§§ 38a-819-70 through 38a-819-75 of the Regulations of Connecti-
cut State Agencies] prohibit the use of the ‘MyPay’ web-based system by a
military service member, for the purpose of processing certain discretionary
pay transactions or providing updates to personal information data elements
without using paper forms?’’
(4) ‘‘Do the words ‘submitting, processing or assisting in the submission
or processing’ as set forth in [§ 38a-819-75 (c) (1) of the Regulations of
Connecticut State Agencies] refer to the ‘allotment form or similar devise’
or do [such words] refer to all other aspect[s] of the allotment system in
addition to the ‘allotment form or similar devise?’ ’’ (Emphasis omitted.)
(5) ‘‘When [§§ 38a-819-70 through 38a-819-75 of the Regulations of Con-
necticut State Agencies] refer to an ‘allotment form’ does that reference
mean an official, numbered [allotment] form, prepared by the [United States
Navy] or other armed services departments?’’
(6) ‘‘May the [department] take disciplinary action against an insurance
producer under [§ 38a-819-74 (c) (1) (2) (3) or (4) of the Regulations of
Connecticut State Agencies] where the insurance producer never ‘received’
any funds from a service member for the payment of premiums from a
depository institution with which the service member has no formal bank-
ing relationship?’’
(7) ‘‘With regard to [§ 38a-819-74 (c) (2) (3) (4) of the Regulations of
Connecticut State Agencies]: May an insurer [as defined by § 38a-819-73 (5)
of the Regulations of Connecticut State Agencies] knowingly receive funds
from a service member for the payment of premiums from a depository
institution with which the service member has no formal banking rela-
tionship?’’
12
The plaintiffs asked the trial court to issue a declaratory judgment
resolving the following seven issues: (1) Does the department ‘‘have jurisdic-
tion or authority to enforce or expand a [United States] Navy ‘policy’ directed
at naval personnel, concerning activities conducted on naval installations,
by naval personnel, to wit: a ‘[seven]-day cooling-off period’ prior to submit-
ting an allotment form for processing by [Defense Financing and Accounting
Services]; and if so, under what statute or regulation is such jurisdiction or
authority granted to the [department]?’’
(2) ‘‘Does [General Statutes] § 38a-816 (8) authorize the [department] to
prohibit the sale of life insurance products to members of the United States
Military . . . for the reason that ‘whole life and universal life products are
not ideal instruments for investment or savings, possible violation of § 38a-
816 (8)’; or to discipline insurance producers for having sold life insurance
products to members of the United States Military for such stated reason;
and would such an unpublished or unnoticed application of . . . § 38a-816
(8) be in violation of [General Statutes] § 4-168 (a)?’’
(3) ‘‘Do [§§ 38a-819-70 through 38a-819-75 of the Regulations of Connecti-
cut State Agencies] prohibit the use of the ‘MyPay’ web-based system by a
military service member, for the purpose of processing certain discretionary
pay transactions or providing updates to personal information data elements
without using paper forms; and if not, does the [department] have jurisdiction
or authority to prohibit such use, or to discipline insurance producers if
the military service members utilize such system?’’
(4) ‘‘Do the words ‘submitting, processing or assisting in the submission
or processing’ as set forth in [§ 38a-819-75 (c) (1) of the Regulations of
Connecticut State Agencies] refer to the ‘allotment form or similar devise’
or do such words refer to all other aspects of the allotment system in
addition to the ‘allotment form or similar devise?’ ’’
(5) ‘‘When [§§ 38a-819-70 through 38a-819-75 of the Regulations of Con-
necticut State Agencies] refer to an ‘allotment form’ does that reference
mean an official, numbered . . . allotment form, prepared by the [United
States Navy] or other armed services department, or does it refer to any
piece of paper which might be called a ‘form?’ ’’
(6) ‘‘May the [department] take disciplinary action against an insurance
producer under [§ 38a-819-74 (c) (1) (2) (3) or (4) of the Regulations of
Connecticut State Agencies] where the insurance producer never ‘received’
any funds from a service member for the payment of premiums from a
depository institution with which the service member has no formal bank-
ing relationship?’’
(7) ‘‘With regard to [§ 38a-819-74 (c) (2) (3) (4) of the Regulations of
Connecticut State Agencies]: may an insurer [as defined by § 38a-819-73 (5)
of the Regulations of Connecticut State Agencies] knowingly receive funds
from a service member for the payment of premiums from a depository
institution with which the service member has no formal banking relation-
ship?’’ (Emphasis omitted.)
13
Specifically, the trial court relied on, inter alia, this court’s decision in
Connecticut Business & Industry Assn., Inc. v. Commission on Hospitals &
Health Care, 218 Conn. 335, 589 A.2d 356 (1991), for the proposition that
declaratory judgment actions brought under § 4-175 are subject to the same
standing and aggrievement requirements as administrative appeals brought
under § 4-183. The trial court then held that § 4-175 is merely a procedural
mechanism that does not, by itself, provide a basis for statutory
aggrievement, thereby requiring the plaintiffs to establish classical
aggrievement. The trial court concluded that the facts pleaded in the plain-
tiffs’ complaint and averred in Reidemeister’s affidavit were insufficient to
establish that the plaintiffs were classically aggrieved, because the depart-
ment had not yet taken action restricting or otherwise jeopardizing their
insurance licenses, meaning that the court could not provide them with any
relief, and the plaintiffs had not pleaded specific facts that would move
their request for a declaratory ruling beyond an impermissible advisory
opinion. Finally, the trial court rejected the plaintiffs’ request that it exercise
primary jurisdiction over this declaratory judgment action, and relieve them
from the need to appeal later from the commissioner’s decision or indecision.
14
We further note that, in deciding ‘‘a jurisdictional question raised by a
pretrial motion to dismiss, [a court] 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, construing them in a manner most
favorable to the pleader. . . . The motion to dismiss . . . admits all facts
which are well pleaded, invokes the existing record and must be decided
upon that alone. . . . In undertaking this review, we are mindful of the
well established notion that, in determining whether a court has subject
matter jurisdiction, every presumption favoring jurisdiction should be
indulged.’’ (Internal quotation marks omitted.) MacDermid, Inc. v. Leonetti,
310 Conn. 616, 626, 79 A.3d 60 (2013); see also, e.g., Columbia Air Services,
Inc. v. Dept. of Transportation, 293 Conn. 342, 347–48, 977 A.2d 636 (2009)
(court applies plenary review to jurisdictional determination founded on
complaint supplemented by affidavits establishing undisputed facts).
15
We note that Republican Party of Connecticut v. Merrill, supra, 307
Conn. 470, does not support the plaintiffs’ position that they should be
permitted to use the declaratory ruling and judgment procedures provided
by §§ 4-175 and 4-176 to avoid their obligations to exhaust the administrative
remedies available to them. The plaintiffs accurately cite Republican Party
of Connecticut for the proposition that a party exhausts its administrative
remedies, thus entitling it to proceed, as appropriate, with a declaratory
judgment action under § 4-175 or an administrative appeal under § 4-183,
by first petitioning an agency for a declaratory ruling pursuant to § 4-176 (a).
Id., 477–78. Nevertheless, Republican Party of Connecticut is not dispositive
here because that case did not involve a declaratory judgment action filed
during a pending agency investigation that was the precursor of license
revocation proceedings. Accordingly, we had no occasion to consider the
question of first impression at issue in the present appeal in the factually
and procedurally distinct context of Republican Party of Connecticut.
Similarly, we disagree with the plaintiffs’ criticism of the trial court’s
reliance on our decision in River Bend Associates, Inc. v. Water Pollution
Control Authority, supra, 262 Conn. 84, in rejecting their claim that they
‘‘are entitled to expedite or bypass the formal process by seeking a declara-
tory ruling from the agency, or a declaratory judgment [in] court, which
would address the same issues as the anticipated license proceeding.’’ In
River Bend Associates, Inc., this court declined to reach the merits of
whether a local water pollution control authority had correctly denied a
builder’s application to connect to its sewer system because the applicant
had not exhausted the available administrative remedy of an appeal from
the authority’s denial to the Commissioner of Environmental Protection.
Id., 101–102. The court concluded that ‘‘our case law makes clear that court
rules, such as Practice Book § 17-55 (3), and broad statutory grants of
jurisdiction, such as [General Statutes] § 52-29, are not intended to circum-
vent the well established principles of exhaustion.’’ Id., 106; see also id.
(‘‘[t]o bypass the requirement of exhaustion and confer upon the courts
subject matter jurisdiction where there otherwise would be no jurisdiction,
a statute must exist that expresses the legislature’s intent to bypass exhaus-
tion requirements’’).
The plaintiffs’ argument that River Bend Associates, Inc. is distinguishable
because it did not concern §§ 4-176 or 4-175 is undermined by our case law,
in particular Republican Party of Connecticut, which strongly suggests that
declaratory judgment actions under § 4-175 are legally indistinguishable for
exhaustion purposes from actions brought pursuant to § 52-29, the general
declaratory judgment statute. See Republican Party of Connecticut v. Mer-
rill, supra, 307 Conn. 484–85 (treating declaratory judgment action challeng-
ing ruling of Secretary of State as functional equivalent to administrative
appeal from that ruling brought pursuant to § 4-183, and citing Wilson v.
Kelley, 224 Conn. 110, 617 A.2d 433 [1992], declaratory judgment action
brought under § 52-29, in describing nature of action).
16
In emphasizing the pendency of the administrative proceedings, the
Missouri Supreme Court in Farm Bureau Town & Country Ins. Co. v.
Angoff, supra, 909 S.W.2d 354, distinguished its state intermediate appellate
court’s decision in Group Health Plan, Inc. v. State Board of Registration
for the Healing Arts, 787 S.W.2d 745, 748–49 (Mo. App. 1990), which had
held that, with no administrative action pending, a state court had subject
matter jurisdiction over a declaratory action filed by physicians, nurses,
pharmacists, and a health maintenance organization seeking a declaration
that their actions allowing nurses to complete presigned prescriptions were
consistent with law, and that the state medical board’s threatened action
would deprive them of equal protection. In Group Health Plan, Inc., the
court noted that there were no administrative remedies to be exhausted by
the plaintiffs because no charges had been filed, meaning that there was
no decision by an administrative agency to be heard or appealed, and con-
cluded that there were no extant statutory or administrative provisions that
would have allowed the plaintiffs to initiate an action within the administra-
tive agency. See id.
17
The other sister state cases that we have located are consistent with
the Missouri Supreme Court’s decision in Farm Bureau Town & Country
Ins. Co. v. Angoff, supra, 909 S.W.2d 348. Accord Thomas v. Board of
Dentistry, 197 Ga. App. 589, 590, 398 S.E.2d 730 (1990) (a dentist is not
required to exhaust administrative remedies before bringing a declaratory
judgment action challenging the agency’s position that the performance of
certain procedures constituted the unlicensed practice of medicine because,
in dismissing the administrative proceedings against him, the board warned
the dentist that the continued performance of those procedures would con-
stitute grounds for administrative and criminal prosecution, meaning that
‘‘the only way for the appellant to challenge the board’s position was to
continue performing the procedures, thereby risking criminal prosecution
for the felony offense of practicing medicine without a license and/or the
initiation of administrative proceedings to revoke his license to practice
dentistry. We do not believe this option can fairly be categorized as an
available administrative remedy.’’); Orr v. Clyburn, 277 S.C. 536, 541–42,
290 S.E.2d 804 (1982) (The court dismissed a declaratory judgment action
challenging the Human Rights Commission’s ‘‘preliminary administrative
discretion to begin this investigation’’ because it ‘‘would afford opportunity
for constant delays in the course of administrative proceedings and would
render orderly administrative procedure impossible. Moreover, it would
bring to the courts an avalanche of preliminary questions many of which
would have become moot in the ordinary course of the administrative
process.’’).
18
We acknowledge that our opinion in Tele Tech of Connecticut Corp.
contains language supportive of the proposition that an agency investigation
is an administrative ‘‘proceeding.’’ In particular, our conclusion that the
Department of Public Utility Control ‘‘instituted the proceedings against
Tele Tech of Connecticut Corporation (Tele Tech) when it issued the . . .
letter to Tele Tech informing it of its initiation of the new investigation.’’
(Emphasis added.) Tele Tech of Connecticut Corp. v. Dept. of Public Utility
Control, supra, 270 Conn. 799; see also id., 784 n.6 (reproducing content of
letter). That language must, however, be viewed in the factual context of
that case, wherein the term ‘‘investigation’’ is more properly understood to
mean a license revocation proceeding conducted in accordance with § 4-
177. Specifically, the principal issue in Tele Tech of Connecticut Corp. was
whether the letter sent by the Department of Public Utility Control to Tele
Tech, a provider of coin operated telephone service, the content of which
‘‘instituted’’ license revocation ‘‘proceedings’’ as a consequence for Tele
Tech’s failure to pay a previously imposed fine, complied with § 4-182 (c).
See id., 795; see also footnote 6 of this opinion for the text of § 4-182 (c).
This issue required us to determine the meaning of the undefined term
‘‘proceedings’’ under § 4-182 (c), in order to ascertain whether Tele Tech
had received timely notice of the facts and conduct at issue, and a ‘‘second
chance’’ opportunity to show compliance. We rejected arguments by the
Department of Public Utility Control and the Office of Consumer Counsel
that, ‘‘for purposes of § 4-182 (c), the department initiated proceedings at
the time of the [administrative] hearing or when the [Department of Public
Utility Control] rendered its final decision . . . .’’ (Emphasis added.) Id.,
799. Accordingly, this court stated that we did ‘‘not understand why a warning
letter with notice of the problems that might lead to the revocation of Tele
Tech’s certificate of public convenience and necessity and an opportunity
to show compliance or to cure those problems that have resulted in noncom-
pliance could not be sent prior to the commencement of formal revocation
proceedings.’’ (Emphasis added.) Id., 799–800. Indeed, our decision in Tele
Tech of Connecticut Corp. emphasized the distinction between formal revo-
cation hearings and the second chance process, concluding that the second
chance process under ‘‘§ 4-182 (c) does not mandate a hearing,’’ in contrast
to the subsequent formal revocation proceeding under § 4-177. Id., 811–12.
We then concluded that the Department of Public Utility Control’s letter
did not comply with § 4-182 (c) because it ‘‘did not provide, prior to the
institution of these proceedings, ‘notice . . . of [the] facts or conduct’
deemed to be improper and ‘an opportunity to show compliance with all
lawful requirements for the retention of the license.’ ’’ Id., 800; see also id.,
801 (observing that letter ‘‘merely advised Tele Tech that the [Department
of Public Utility Control] had initiated an investigation into whether it should
revoke Tele Tech’s certificate of public convenience and necessity, informed
Tele Tech of certain departmental procedural practices and indicated that
it had designated Tele Tech as a party to the proceeding without reference
to the basis underlying the initiation of the proceeding’’). We further observed
that this letter was inconsistent with the purpose of the second chance
doctrine embodied in § 4-182 (c), ‘‘which allows a licensee the opportunity
to put its house in lawful order before more formal agency proceedings are
undertaken.’’ (Internal quotation marks omitted.) Id., 802; see also id., 803
(noting testimony that Tele Tech’s owner would have taken advantage of
‘‘second chance’’ and averted license revocation proceedings by paying
previously imposed fine in installments). Despite this procedural lapse,
however, we upheld the Department of Public Utility Control’s decision to
revoke Tele Tech telephone operator’s license, concluding that, on the fac-
tual record in the case, its substantial rights had not been prejudiced by
the violation of § 4-182 (c). See id., 814–15.
19
For the relevant text of § 4-177, see footnote 2 of this opinion.
20
Section 38a-8-60 (a) of the Regulations of Connecticut State Agencies
provides: ‘‘All enforcement proceedings instituted by the Commissioner for
the revocation or suspension of any license or imposition of a fine, or both,
shall be initiated by serving on each respondent a complaint which shall
specify in reasonable detail the conduct alleged to constitute a violation of
any regulation or statutory provision which the commissioner has jurisdic-
tion to enforce and contain the information required by section 38a-8-32 of
the Regulations of Connecticut State Agencies and section 4-177 of the
Connecticut General Statutes. In addition, the complaint shall include a
notice that the respondent’s failure to file an answer in accordance with
section 38a-8-61 of the Regulations of Connecticut State Agencies shall allow
the commissioner or the presiding officer to treat as admitted the allegations
in the complaint and issue a decision by default against the respondent,
pursuant to section 38a-8-62 of the Regulations of Connecticut State
Agencies.’’
21
The commissioner relies on, inter alia, Greater Bridgeport Transit Dis-
trict v. Commission on Human Rights & Opportunities, 211 Conn. 129,
131, 557 A.2d 925 (1989), for the proposition that ‘‘we have recognized the
delay and disruption in the administrative process that would result from
judicial interference with statutorily authorized administrative investigations
intended to determine whether there is a factual basis for the initiation of
formal proceedings.’’ See also id., 132–33 (dismissing action seeking injunc-
tive relief for failure to exhaust administrative remedies, despite fact that
action was grounded in claim that plaintiff was statutorily exempt from
agency regulation); see also Commission on Human Rights & Opportuni-
ties v. Archdiocesan School Office, 202 Conn. 601, 606, 522 A.2d 781 (‘‘it is
improper to make a determination of the substantive applicability of the
statute to a particular case before completion of an investigation expressly
authorized to be conducted prior to the institution of a proceeding against
a person who may have violated the underlying statute’’), appeal dismissed,
484 U.S. 805, 108 S. Ct. 51, 98 L. Ed. 2d 15 (1987). In our view, these cases
are distinguishable because, in contrast to the relatively informal second
chance process that is a precursor to license revocation proceedings, they
involve formal agency proceedings in the form of interrogatories that the
Commission on Human Rights and Opportunities is authorized to issue
under General Statutes § 46a-54 (11), subject to judicial enforcement under
General Statutes § 46a-88.
22
The legislature, of course, remains free to amend the statutory scheme
to clarify, as a matter of public policy, when licensed individuals or entities
may seek declaratory relief in matters that relate to pending investigations.
Cf. Keeter v. Texas Dept. of Agriculture, 844 S.W.2d 901, 902 (Tex. App.
1996) (The court noted a division among commentators about whether a
state declaratory judgment statute may be used to ‘‘[attack] a final order in
a contested case,’’ and observed that, although the statute did not contain
an exhaustion requirement, it did provide that it ‘‘may not ‘be used to delay
or stay a hearing after notice of hearing has been given if a suspension,
revocation, or cancellation of a license . . . is at issue before the agency.’ ’’
On the basis of these facts, the court concluded that: ‘‘other types of agency
action may be stayed by [an action under the state declaratory judgment
statute] before a final order or an exhaustion of remedies.’’).
23
An issue potentially implicated by the commissioner’s arguments that
court proceedings should not be used to interfere with pending administra-
tive investigations is whether permitting the plaintiffs to utilize the declara-
tory judgment procedure, without waiting for the completion of the pending
investigation, implicates the primary jurisdiction doctrine, which is triggered
when courts and administrative agencies have concurrent subject matter
jurisdiction over a case. See, e.g., Waterbury v. Washington, 260 Conn.
506, 574, 800 A.2d 1102 (2002). Intended to ‘‘promote proper relationships
between the courts and administrative agencies charged with particular
regulatory duties,’’ the primary jurisdiction doctrine ‘‘applies where a claim
is originally cognizable in the courts, and comes into play whenever enforce-
ment of the claim requires the resolution of issues which, under a regulatory
scheme, have been placed within the special competence of an administra-
tive body; in such a case the judicial process is suspended pending referral
of such issues to the administrative body for its views.’’ (Internal quotation
marks omitted.) Id. ‘‘[T]he rationale underlying primary jurisdiction is in
substance much the same as that which supports exhaustion. . . . The
doctrine of primary jurisdiction, like exhaustion, is grounded in a policy of
fostering an orderly process of administrative adjudication and judicial
review in which a reviewing court will have the benefit of the agency’s
findings and conclusions.’’ (Citation omitted; internal quotation marks omit-
ted.) Sharkey v. Stamford, supra, 196 Conn. 256; see also Waterbury v.
Washington, supra, 573–75 (concluding that legislature intended to ‘‘sup-
plant the exhaustion doctrine and to permit courts to hear environmental
claims, even where an administrative agency is available to hear the claim,’’
but remanding case to trial court to determine whether, consistent with
doctrine of primary jurisdiction, matter concerning compliance with mini-
mum flow standards should be remanded to Department of Environmental
Protection pursuant to General Statutes § 22a-18 [b]). Whether this action
should be stayed pursuant to the primary jurisdiction doctrine pending the
completion of the department’s investigation is a matter appropriate for
consideration on remand, wherein the trial court may consider whether any
factual and procedural developments in the present case warrant that action.
24
The commissioner focuses much of his standing analysis on challenging
the adequacy of the more general and conclusory allegations in the complaint
with respect to establishing the plaintiffs’ status as personally aggrieved
parties, as distinct from members of the public generally. In considering
the plaintiffs’ standing, however, we are not limited to the allegations in
their complaint. See, e.g., Conboy v. State, supra, 292 Conn. 651–52 (noting
that trial courts may consider jurisdictional questions [1] on basis of com-
plaint alone, [2] complaint ‘‘supplemented by undisputed facts established
by affidavits submitted in support of the motion to dismiss’’ or ‘‘other types
of undisputed evidence,’’ and [3] after holding evidentiary hearing to resolve
‘‘critical factual disputes’’).
25
We disagree with the commissioner’s reliance on ABC, LLC v. State
Ethics Commission, 264 Conn. 812, 826 A.2d 1077 (2003), for the proposition
that a declaratory judgment is inappropriate because all of the facts at issue
are hypothetical until determined in the agency proceeding. In that case,
we held that the plaintiffs were not aggrieved for purposes of a declaratory
judgment action under § 4-175 when they had submitted a set of ‘‘hypotheti-
cal facts’’ for declaratory ruling by State Ethics Commission, and disclaimed
them as ‘‘accurate and comprehensive account of the plaintiffs’ actual con-
duct,’’ which was simultaneously the subject of an ongoing contested case
hearing that had been joined with their administrative petition for a declara-
tory ruling under § 4-176. See id., 826–28; see also id., 827 (‘‘If the facts
presented to the commission were not ‘real’ for the purposes of the enforce-
ment proceedings, then they were not ‘real’ for the purposes of the declara-
tory ruling. The law, as a general rule, does not countenance parallel
realities.’’). In relying on ABC, LLC, the commissioner posits that the depart-
ment ‘‘could not issue a declaratory ruling on the specified circumstances
under investigation because the department has not yet concluded the pro-
ceeding or made any findings of fact, and the plaintiffs have not admitted
to any of the underlying facts necessary to render a declaratory ruling
or judgment.’’
In our view, ABC, LLC, is distinguishable. First, as we held in part I B
of this opinion, there simply is no administrative proceeding pending in this
case because the department has not yet commenced a contested case
hearing against the plaintiffs. In contrast, ABC, LLC, involved a contested
case hearing pending along with the consolidated declaratory ruling petition.
Second, there is no indication anywhere in this record that the plaintiffs
are seeking to establish ‘‘parallel realities’’ by treating the department’s
investigation and the declaratory petition/action as factually distinct.
26
As an alternative ground for affirming the judgment of the trial court,
the commissioner argues that subject matter jurisdiction is lacking over
each of the questions posed in the complaint; see footnote 12 of this opinion;
on the ground that they (1) were improper under §§ 4-175 and 4-176 ‘‘for
failing to seek the validity of a regulation or the applicability of a provision
of the general statutes or a regulation’’; (2) ‘‘were not exhausted before
the department’’; (3) ‘‘failed to establish standing or aggrievement’’; or (4)
‘‘impermissibly sought legal advice.’’ Because the record is adequate for
review of these pure questions of law, notwithstanding the fact that the trial
court did not rule on them, we briefly review each of these somewhat
hypertechnical claims.
The commissioner first argues that first question posed in the complaint
is not proper under § 4-175 or § 4-176 because it ‘‘did not address the validity
of [a] regulation or the applicability of [a] provision of the general statutes
or [a] regulation. Instead, [the] plaintiffs sought a judgment addressing the
department’s jurisdiction or authority to enforce military policy.’’ (Internal
quotation marks omitted.) We disagree. Instead, we agree with the plaintiffs’
contention that the first question, which questions the source of the depart-
ment’s statutory jurisdiction or authority to enforce United States Navy
policies, is squarely within the scope of §§ 4-175 and 4-176, given that the
provision of declaratory relief is keyed to ‘‘matter[s] within the jurisdiction
of the agency.’’ General Statutes § 4-176 (a).
The commissioner next argues that the second question posed in the
complaint is not the same question posed in the plaintiffs’ request for a
declaratory ruling and, thus, means that the plaintiffs failed to exhaust their
administrative remedies by first presenting it to the department. We disagree
with the commissioner’s restrictive reading of the record. Read realistically,
the subject matter of the second question, namely, that ‘‘whole life and
universal life products are not ideal instruments for investment or savings,’’
is encompassed in the letter from the plaintiffs’ counsel requesting a declara-
tory ruling, despite the fact that, unlike the facts posed in the letter, the
second question in the complaint is not limited to a particular class of
military service members. Thus, although the questions are not exactly
identical, the factual predicate for second question was sufficiently pre-
sented to the department for purposes of exhaustion.
With respect to the third question, the commissioner argues that it is
improper because it ‘‘did not appear to bear any particular relation to [the]
plaintiffs’ rights,’’ insofar as it questioned whether the department’s regula-
tions prohibit the use of the ‘‘ ‘MyPay’ ’’ web-based payment system for
certain purposes. Again, read in the context of the plaintiffs’ underlying
petition, this question indicates that the plaintiffs’ business rights are impli-
cated because the department’s regulations may be used to preclude military
service members from using this web-based system to pay for their life
insurance purchases.
The commissioner next argues that the fourth, fifth and sixth questions
posed in the complaint are ‘‘impermissible requests for legal advice.’’
Although these questions are drafted as broader questions of law, without
specific tailoring to the plaintiffs’ situation, the presumption in favor of
jurisdiction, as well as our conclusion that the plaintiffs have standing to
bring this declaratory judgment action, counsel against finding these ques-
tions defective at this point.
Finally, we disagree with the commissioner’s argument that the plaintiffs
lack standing with respect to the seventh question posed in the complaint
because it pertains to the receipt of funds from service members by insurers,
rather than insurance producers. Read holistically with the petition, we
agree with the plaintiffs and conclude that this question affects the plaintiffs’
interests because of the averment that the department is seeking to apply
the regulation in question against insurance producers as well.