Metropolitan District v. Commission on Human Rights & Opportunities

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THE METROPOLITAN DISTRICT v. COMMISSION ON
HUMAN RIGHTS AND OPPORTUNITIES
(AC 39371)
Sheldon, Elgo and Mihalakos, Js.
Syllabus
The plaintiff municipal entity, which was the respondent in several proceed-
ings pending before the defendant Commission on Human Rights and
Opportunities, commenced this action seeking a declaratory judgment,
as well as injunctive and other relief, against the commission, which is
a state agency governed by the provisions of the Uniform Administrative
Procedure Act (act) (§ 4-166 et seq.). The plaintiff alleged that the com-
mission, as a matter of practice, had assumed and retained jurisdiction
over complaints without conducting a proper merit assessment review
and made improper reasonable cause determinations, in contravention
of its statutory and regulatory obligations and in violation of the plain-
tiff’s right to due process. The commission filed a motion to dismiss
the action for lack of subject matter jurisdiction due to the plaintiff’s
failure to exhaust its administrative remedies. The trial court granted
the motion to dismiss and rendered judgment dismissing the plaintiff’s
action, from which the plaintiff appealed to this court. Held:
1. The plaintiff had adequate administrative remedies that it was required,
but failed, to exhaust prior to commencing the present civil action:
although the complaint primarily complained of certain routine practices
allegedly engaged in by the commission, the present action was predi-
cated on the commission’s conduct in five specific proceedings before
the commission in which the plaintiff was the respondent, three of which
were pending before the commission at the time the plaintiff commenced
the present action and concerned the same conduct that formed the
basis for the declaratory relief requested, namely, that the commission
had not complied with its statutory and regulatory obligations and had
improperly assumed jurisdiction over complaints against the plaintiff
filed by independent contractors, and, therefore, the plaintiff was
required to exhaust its remedies in those pending administrative pro-
ceedings, including filing an administrative appeal pursuant to § 4-183
in the Superior Court following the commission’s decision, if necessary;
moreover, because, during the pendency of those administrative actions,
the plaintiff could not resort to the avenues of declaratory relief available
under the act to bypass its obligation to exhaust its remedies in the
context of a pending administrative proceeding, it likewise was fore-
closed from seeking declaratory relief via an independent action in the
Superior Court, and to the extent that any issues remained following
the culmination of those proceedings, the plaintiff could then properly
seek declaratory relief as provided by §§ 4-175 and 4-176.
2. The plaintiff could not prevail on its claim that it qualified for an exception
to the exhaustion of administrative remedies requirement for situations
in which resort to the administrative remedy would be futile or inade-
quate: the plaintiff failed to establish demonstrable futility in pursuing
its administrative remedies before the commission, as proceedings
before the commission are not futile where, as here, a plaintiff’s claims
can be addressed by way of defenses to the complaint, the plaintiff did
not establish that it could not prevail before the commission in the
pending proceedings, and although the plaintiff claimed that it was
unlikely that the commission would rule in its favor and declare its own
conduct to be improper, that contention was based on speculation,
which could not establish the requisite futility; moreover, the plaintiff
was not permitted to bypass the available administrative procedures
even though that process might prove more costly and less convenient
than going directly to Superior Court, it could pursue an administrative
appeal pursuant to § 4-183, in which it could challenge the agency’s
determinations, and it failed to articulate any reason why such an appeal
would be inadequate, particularly when the statute expressly encom-
passes allegations that an agency has acted in violation of statutory
provisions, in excess of its statutory authority, or upon unlawful pro-
cedure.
3. The plaintiff could not prevail on its claim that because it was contesting
the jurisdiction of the commission it did not need to comply with the
exhaustion requirement, which was based on its claim that there exists
a broad exception to the exhaustion requirement that is implicated when
the jurisdiction of the administrative agency is challenged: our Supreme
Court previously has rejected a similar argument and determined that
an administrative agency must first be given the opportunity to determine
its own jurisdiction, and, therefore, the plaintiff was obligated to raise
its challenge to the jurisdiction of the commission in the pending admin-
istrative proceedings and, if necessary, in an appeal pursuant to § 4-183
or a subsequent declaratory petition pursuant to § 4-176; moreover, the
inclusion of requests for injunctive relief and a writ of mandamus in
the complaint did not obviate the need for the plaintiff to comply with
the exhaustion requirement.
4. The plaintiff’s claim that the exhaustion of administrative remedies
requirement did not apply to the count of its complaint alleging a viola-
tion of its federal due process rights was unavailing; the inadequacy of
an available legal remedy is a standard prerequisite for injunctive relief
in a state court, and where, as here, an adequate administrative remedy
existed, no form of injunctive relief, under the applicable federal statute
(42 U.S.C. § 1983) or otherwise, was justified as an exception to the
exhaustion requirement.
Argued November 30, 2017—officially released March 27, 2018
Procedural History
Action seeking, inter alia, a judgment declaring that
the defendant Commission on Human Rights and
Opportunities had engaged in improper rule making,
and for other relief, brought to the Superior Court in
the judicial district of Hartford, where the court, Scholl,
J., granted the defendant’s motion to dismiss and ren-
dered judgment thereon, from which the plaintiff
appealed to this court. Affirmed.
Jeffrey J. Mirman, with whom, on the brief, was
Amy E. Markim, for the appellant (plaintiff).
Emily V. Melendez, assistant attorney general, with
whom, on the brief, was George Jepsen, attorney gen-
eral, for the appellee (defendant).
Opinion
ELGO, J. In this civil action, the plaintiff, The Metro-
politan District,1 appeals from the judgment of the trial
court granting the motion to dismiss filed by the defen-
dant, the Connecticut Commission on Human Rights
and Opportunities (commission). On appeal, the plain-
tiff claims that the court improperly dismissed the
action for lack of subject matter jurisdiction due to the
plaintiff’s failure to exhaust its administrative remedies.
We disagree and, accordingly, affirm the judgment of
the trial court.
The plaintiff is a municipal entity that was created
in 1929 by a special act of the General Assembly ‘‘for
the purpose of water supply, waste management and
regional planning.’’ Martel v. Metropolitan District
Commission, 275 Conn. 38, 41, 881 A.2d 194 (2005);
see also Rocky Hill Convalescent Hospital, Inc. v. Met-
ropolitan District, 160 Conn. 446, 450–51, 280 A.2d 344
(1971). The commission is a state agency whose ‘‘pri-
mary role . . . is to enforce statutes barring discrimi-
nation . . . .’’ Commission on Human Rights &
Opportunities v. Hartford, 138 Conn. App. 141, 144 n.2,
50 A.3d 917, cert. denied, 307 Conn. 929, 55 A.3d 570
(2012). With respect to certain nondiscrimination stat-
utes, the legislature expressly has deemed the plaintiff
‘‘to be a state agency’’ within the jurisdiction of the
commission. General Statutes § 46a-68 (a).
In late December, 2015, the plaintiff commenced this
action seeking a declaratory judgment against the com-
mission, as well as injunctive relief and a writ of manda-
mus. In its complaint, the plaintiff alleges that the
commission, ‘‘as a matter of practice,’’ assumes and
retains jurisdiction over complaints without conducting
a proper merit assessment review and makes improper
reasonable cause determinations, in contravention of
its statutory and regulatory obligations. More specifi-
cally, the plaintiff alleges that the commission routinely
fails to comply with the strictures of General Statutes
§ 46a-83 and §§ 46a-54-42a (a) and 46a-54-49a (b) of
the Regulations of Connecticut State Agencies.2 By so
doing, the commission allegedly has engaged in
improper rulemaking and has violated the plaintiff’s due
process rights, as secured by 42 U.S.C. § 1983. Those
allegations are predicated in part on the commission’s
conduct in five specific proceedings in which the plain-
tiff was the respondent.3 The complaint also alleges
that the commission lacks jurisdiction over complaints
made by independent contractors against the plaintiff.
The request for relief in the plaintiff’s complaint is
primarily declaratory in nature. The plaintiff seeks a
declaratory judgment that the commission has engaged
in improper rulemaking by engaging in certain ‘‘routine
practices’’4 and has ‘‘violated the procedural and sub-
stantive due process rights of the [plaintiff] by engaging
in [those] practices.’’ The complaint also seeks a declar-
atory judgment ‘‘that General Statutes § 46a-715 does
not apply to the [plaintiff], and that the [commission]
does not have jurisdiction over complaints filed by inde-
pendent contractors against the [plaintiff].’’ (Footnote
added.)
Apart from such declaratory relief, the complaint
requests a permanent injunction ‘‘enjoining the [com-
mission] from engaging in improper rulemaking . . .
and requiring [it] to follow its statutory mandate to
engage in proper merit assessment reviews, to dismiss
complaints during the merit assessment review process
where no reasonable cause exists, to engage in proper
substantive review during the early legal intervention
process, and to refrain from attempting to assume juris-
diction over matters outside the jurisdiction of the
agency.’’6 The complaint further requests a writ of man-
damus ordering the commission ‘‘to review all of its
files regarding complaints of discriminatory employ-
ment practices since 2011’’ to determine whether the
commission engaged in any of the routine practices
enumerated in its complaint. See footnote 4 of this
opinion.
In response, the commission filed a motion to dismiss
the plaintiff’s complaint for lack of subject matter juris-
diction due to the plaintiff’s failure to exhaust its admin-
istrative remedies.7 Following the filing of memoranda
of law by the parties, the court heard argument on the
motion. In its subsequent memorandum of decision, the
court concluded that the plaintiff had adequate adminis-
trative remedies that it failed to exhaust prior to com-
mencing this action. Accordingly, the court granted the
motion to dismiss for lack of subject matter jurisdiction,
and this appeal followed.
As a preliminary matter, we note that ‘‘[i]n an appeal
from the granting of a motion to dismiss on the ground
of subject matter jurisdiction, this court’s review is ple-
nary. A determination regarding a trial court’s subject
matter jurisdiction is a question of law. When . . . the
trial court draws conclusions of law, our review is ple-
nary and we must decide whether its conclusions are
legally and logically correct and find support in the
facts that appear in the record. . . . Jurisdiction of the
subject matter is the power [of the court] to hear and
determine cases of the general class to which the pro-
ceedings in question belong. . . . A court has subject
matter jurisdiction if it has the authority to adjudicate
a particular type of legal controversy.’’ (Internal quota-
tion marks omitted.) Francis v. Chevair, 99 Conn. App.
789, 791, 916 A.2d 86, cert. denied, 283 Conn. 901, 926
A.2d 669 (2007). ‘‘When a . . . court decides a jurisdic-
tional 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 alle-
gations, construing them in a manner most favorable
to the pleader.’’ (Internal quotation marks omitted.)
Bellman v. West Hartford, 96 Conn. App. 387, 393, 900
A.2d 82 (2006). Further, in addition to admitting all facts
well pleaded, the motion to dismiss ‘‘invokes any record
that accompanies the motion, including supporting affi-
davits that contain undisputed facts.’’ (Internal quota-
tion marks omitted.) Henriquez v. Allegre, 68 Conn.
App. 238, 242, 789 A.2d 1142 (2002).
This appeal concerns the proper application of the
exhaustion doctrine. ‘‘The doctrine of exhaustion of
administrative remedies is well established in the juris-
prudence of administrative law. . . . Under that doc-
trine, 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. . . . In the absence of exhaustion of that rem-
edy, the action must be dismissed.’’ (Internal quotation
marks omitted.) Republican Party of Connecticut v.
Merrill, 307 Conn. 470, 477, 55 A.3d 251 (2012); see also
Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41,
50–51, 58 S. Ct. 459, 82 L. Ed. 638 (1938) (‘‘no one is
entitled to judicial relief for a supposed or threatened
injury until the prescribed administrative remedy has
been exhausted’’).
The exhaustion doctrine is rooted in both prudential
and constitutional considerations. As our Supreme
Court has explained, ‘‘separation of powers principles
[underlie] the exhaustion doctrine, namely, to foster
an orderly process of administrative adjudication and
judicial 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.’’ (Emphasis in original;
internal quotation marks omitted.) Lopez v. Board of
Education, 310 Conn. 576, 598–99, 81 A.3d 184 (2013);
see also McKart v. United States, 395 U.S. 185, 194, 89
S. Ct. 1657, 23 L. Ed. 2d 194 (1969) (exhaustion doctrine
an expression of executive autonomy); American Fed-
eration of Government Employees v. Resor, 442 F.2d
993, 994 (3d Cir. 1971) (‘‘[f]or the courts to act prema-
turely, prior to the final decision of the appropriate
administrative agency, would raise a serious question
regarding the doctrine of separation of powers, and in
any event would violate a [legislative] decision that
the present controversy be initially considered by the
[agency]’’); Pet v. Dept. of Health Services, 207 Conn.
346, 351–52, 542 A.2d 672 (1988) (‘‘[A] favorable out-
come [in an administrative proceeding] will render
review by the court unnecessary as . . . [a] complain-
ing 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.]).
Accordingly, ‘‘[i]t is a settled principle of administrative
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 quota-
tion marks omitted.) Fairchild Heights Residents
Assn., Inc. v. Fairchild Heights, Inc., 310 Conn. 797,
808, 82 A.3d 602 (2014).
I
We first consider the question of whether administra-
tive remedies were available to the plaintiff in the pre-
sent case. In this regard, we note that the plaintiff’s
complaint is twofold in nature. Although it primarily
complains of certain ‘‘routine practices’’ allegedly
engaged in by the commission, it also is predicated on
the commission’s conduct in five specific proceedings
in which the plaintiff was the respondent. See footnote
3 of this opinion.
With respect to the former, we note that the com-
plaint generally alleges that the commission routinely
fails to comply with certain statutory and regulatory
obligations. In addition, the plaintiff seeks a declaratory
judgment ‘‘that [§] 46a-71 does not apply to the [plain-
tiff], and that the [commission] does not have jurisdic-
tion over complaints filed by independent contractors
against the [plaintiff].’’ In granting the motion to dis-
miss, the court concluded, inter alia, that the plaintiff
had ‘‘the ability to request a declaratory ruling from the
commission as to the issues it raises,’’ which it failed
to exhaust before commencing this civil action in the
Superior Court.8 That determination merits closer
scrutiny.
The commission is a state agency governed by the
provisions of the Uniform Administrative Procedure
Act (UAPA), General Statutes § 4-166 et seq. See Com-
mission on Human Rights & Opportunities v. Board
of Education, 270 Conn. 665, 673, 855 A.2d 212 (2004).
Pursuant to General Statutes § 4-176 (a), ‘‘[a]ny 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.’’ If the agency
issues a declaratory ruling in response to a request
made pursuant to § 4-176, ‘‘[a]n aggrieved party can
appeal from a declaratory ruling to the Superior Court
pursuant to General Statutes § 4-183. See General Stat-
utes §§ 4-166 (3)9 [now (5)] and 4-176 (h).10 In addition,
if an agency declines to issue a declaratory ruling, the
person who requested the ruling may bring a declara-
tory judgment action [in the Superior Court] pursuant to
General Statutes § 4-175 (a).11’’ (Footnotes in original.)
Republican Party of Connecticut v. Merrill, supra, 307
Conn. 477–78.
Compliance with § 4-176 is not a discretionary option
for a party such as the plaintiff, but rather is a ‘‘precondi-
tion’’ to the commencement of a declaratory action
in the Superior Court. Financial Consulting, LLC v.
Commissioner of Ins., 315 Conn. 196, 199, 105 A.3d
210 (2014). As our Supreme Court has explained, ‘‘[i]n
1988, the legislature passed No. 88-317 of the 1988 Pub-
lic Acts (P.A. 88-317), which substantially revised the
UAPA. . . . The purpose of this revision, in part, was to
simplify the [circumstances] that require appeal [from
declaratory rulings] as oppose[d] to independent action.
. . . Accordingly, the legislature subjected declaratory
rulings . . . in both contested and noncontested cases,
to judicial review by way of [administrative] appeal
. . . and limited direct petitions to the Superior Court
for declaratory judgments to those circumstances
wherein the petitioner first had requested a declara-
tory ruling from the agency, but did not receive one.’’
(Citations omitted; emphasis added; internal quotation
marks omitted.) Sastrom v. Psychiatric Security
Review Board, 291 Conn. 307, 322–23, 968 A.2d 396
(2009). For that reason, the 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.’’ Republican Party of Connecticut v. Merrill,
supra, 307 Conn. 478; see also Polymer Resources, Ltd.
v. Keeney, 227 Conn. 545, 558, 630 A.2d 1304 (1993)
(‘‘[b]ecause [the plaintiff] could have appealed to the
Superior Court pursuant to § 4-183 from any adverse
declaratory ruling by the commissioner . . . [it] was
required to request such a declaratory ruling before
seeking redress in court’’); Connecticut Mobile Home
Assn., Inc. v. Jensen’s, Inc., 178 Conn. 586, 589–91, 424
A.2d 285 (1979) (plaintiff improperly bypassed adminis-
trative remedy by failing to seek declaratory ruling from
agency prior to commencing action in Superior Court).
It is undisputed that the plaintiff did not avail itself of
the administrative remedy provided by § 4-176 prior to
commencing this declaratory action.
Whether the plaintiff properly was entitled to avail
itself of that administrative remedy is another question.
While the essence of the plaintiff’s complaint is that
the commission allegedly has failed, as a matter of prac-
tice, to comply with certain statutory and regulatory
obligations, the complaint also is predicated on the
commission’s conduct in five specific proceedings
before the commission in which the plaintiff was the
respondent. The inclusion of such allegations requires
us to consider whether the pendency of any of those
proceedings precluded resort to the avenues of declara-
tory relief afforded under §§ 4-175 and 4-176, in light of
our Supreme Court’s decision in Financial Consulting,
LLC v. Commissioner of Ins., supra, 315 Conn. 196.
The plaintiffs in that case were insurance producers
that were licensees of the defendant administrative
agency. Id., 200–201. When an insurance company noti-
fied the agency that it was terminating the plaintiffs as
its agents due to their ‘‘alleged misconduct while selling
life insurance policies,’’ the agency began an investiga-
tion of the plaintiffs to determine whether they had
violated any state insurance laws. Id., 201. During the
course of that investigation, the agency issued ‘‘ ‘second
chance’ ’’ notices to 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.’’ Id.
While that investigation was pending, the plaintiffs
filed a petition for a declaratory ruling pursuant to § 4-
176 with the agency,12 which took no action thereon.
Id., 202–203. After sixty days had passed, the plaintiffs
brought a declaratory action in the Superior Court pur-
suant to § 4-175. Id., 203. Because the agency at that
time was engaged in an investigation of the plaintiffs,
the trial court concluded that the investigation consti-
tuted a pending ‘‘ ‘agency proceeding’ ’’ under the
UAPA. Id., 204. The court therefore ‘‘rejected the plain-
tiffs’ claim that §§ 4-175 and 4-176 authorized them to
use the declaratory judgment procedure to bypass the
[agency’s] pending administrative process’’ and dis-
missed the matter for lack of subject matter jurisdiction
due to the plaintiffs’ failure to exhaust their administra-
tive remedies. Id., 204–205.
On appeal, the Supreme Court addressed, as a matter
of first impression, the issue of ‘‘whether the declara-
tory ruling and judgment procedures [set forth in §§ 4-
175 and 4-176] are available when an agency proceeding,
such as an investigation, is already pending with respect
to the conduct at issue.’’ Id., 211; see also id., 215 n.15.
The court answered that query in the negative, stating
that ‘‘[t]he utility of that statutory procedure is . . .
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 . . . judicial relief in an
administrative appeal pursuant to § 4-183 from the final
agency decision against them. . . . Thus, once an
administrative proceeding has commenced, the pruden-
tial concerns underlying the exhaustion doctrine coun-
sel against permitting parties to pursue a judicial
remedy such as a declaratory judgment.’’ Id., 214–15.
The court further noted authority from sister states that
‘‘supports the position . . . that the declaratory judg-
ment procedures under §§ 4-175 and 4-176 may not be
used to bypass a party’s obligation to exhaust its reme-
dies in the context of a pending administrative proceed-
ing.’’ Id., 215–16. The court nevertheless held that,
because the agency had ‘‘not yet instituted formal
license revocation proceedings’’ against the plaintiffs;
id., 221; the trial court had ‘‘improperly dismissed this
declaratory judgment action on the ground that the
plaintiffs had failed to exhaust their administrative rem-
edies.’’ Id., 222.
In so doing, the court in Financial Consulting, LLC,
distinguished those proceedings before the defendant
Commissioner of Insurance from investigatory proceed-
ings before the commission, stating that ‘‘in contrast to
the relatively informal second chance process that is a
precursor to license revocation proceedings [before the
Commissioner of Insurance, proceedings before the
commission] involve formal agency proceedings
. . . .’’ Id., 222 n.21. That distinction is consistent with
Greater Bridgeport Transit District v. Commission on
Human Rights & Opportunities, 211 Conn. 129, 131,
557 A.2d 925 (1989), which recognized that the commis-
sion’s ‘‘investigation of a complaint of employment dis-
crimination’’; id., 133; constituted a pending
administrative proceeding that required exhaustion
prior to ‘‘a judicial challenge’’ to the commission’s
actions. Id., 131; see also id. (‘‘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 initia-
tion of formal proceedings’’); Commission on Human
Rights & Opportunities v. Archdiocesan School Office,
202 Conn. 601, 605, 608, 522 A.2d 781 (holding that
respondent in pending commission proceeding could
not raise issues in Superior Court proceeding challeng-
ing administrative action because ‘‘the investigatory
stage’’ had not concluded and stating that ‘‘the [commis-
sion’s] investigation may not be forestalled at this point
in the proceeding simply because [constitutional] issues
may later be raised if the outcome of the investigatory
process is adverse to the defendants’’), appeal dis-
missed, 484 U.S. 805, 108 S. Ct. 51, 98 L. Ed. 2d 15 (1987).
In accordance with the foregoing, we must examine
the record to determine (1) whether any of the five
proceedings before the commission detailed in the
plaintiff’s complaint were pending at the time that this
action was commenced and (2) if so, whether the pro-
ceeding concerns ‘‘the same conduct that forms the
basis for the petition for declaratory relief.’’ Financial
Consulting, LLC v. Commissioner of Ins., supra, 315
Conn. 214. At oral argument before the trial court on
the motion to dismiss, the plaintiff’s counsel conceded
that the Dixon and Smith matters; see footnote 3 of
this opinion; were not pending.13 Nevertheless, the com-
mission, in its motion to dismiss, acknowledged that
the other three proceedings, identified as Sotil v. Metro-
politan District Commission, Cipes v. Metropolitan
District Commission, and Wills v. Metropolitan Dis-
trict Commission, in the plaintiff’s complaint, were
‘‘currently pending’’ before the commission.
Guided by the precedent of our Supreme Court in
Financial Consulting, LLC v. Commissioner of Ins.,
supra, 315 Conn. 214, we therefore look to whether any
of those three proceedings concern the same conduct
that forms the basis for the present declaratory action.
In this regard, we are mindful of the procedural posture
of this case, in which the court, in considering the merits
of a motion to dismiss, must construe the allegations of
the complaint in the light most favorable to the pleader.
Wilkins v. Connecticut Childbirth & Women’s Center,
314 Conn. 709, 718, 104 A.3d 671 (2014).
So construed, the plaintiff’s complaint indicates that
the Sotil matter involves the same conduct complained
of in this civil action—namely, the commission’s alleged
noncompliance with its statutory and regulatory obliga-
tions, and its jurisdiction over complaints filed by inde-
pendent contractors against the plaintiff.14 The parties
have not argued otherwise in this appeal. In addition,
both the commission and the plaintiff, in their respec-
tive memoranda of law submitted on the motion to
dismiss, appended various documents regarding the
Sotil matter that plainly evince a dispute as to whether
the commission had improperly retained jurisdiction
over the matter, as the plaintiff alleges in its complaint.15
The plaintiff’s complaint also indicates that although
‘‘[i]n the position statement filed on September 29, 2015,
in connection with the Sotil case . . . counsel for the
[plaintiff] advised the [commission], inter alia, that (1)
all of the claims were filed beyond the 180 day limitation
period and are time barred, and (2) that the [commis-
sion] is without jurisdiction over those claims brought
pursuant to 42 U.S.C. [§] 1981,’’ the commission refused
to address those jurisdictional issues. The complaint
likewise alleges that the Cipes matter involves the issue
of whether the complainant was an independent con-
tractor over which the commission had jurisdiction,
while the Wills matter pertains to whether the commis-
sion improperly had retained jurisdiction over an
untimely complaint. Like the plaintiffs in Financial
Consulting, LLC v. Commissioner of Ins., supra, 315
Conn. 202–203, the plaintiff here was a respondent in
administrative agency proceedings that concerned the
very issues on which it sought declaratory relief.
The existence of those pending administrative pro-
ceedings, which concern the same conduct that forms
the basis for the plaintiff’s request for declaratory relief,
precluded the plaintiff from seeking such relief pursu-
ant to §§ 4-175 and 4-176. As our Supreme Court
observed, those declaratory judgment procedures,
which are the only statutory mechanisms by which a
party to an administrative proceeding may bring a direct
petition for declaratory relief to the Superior Court;
Sastrom v. Psychiatric Security Review Board, supra,
291 Conn. 322; ‘‘may not be used to bypass a party’s
obligation to exhaust its remedies in the context of a
pending administrative proceeding.’’16 Financial Con-
sulting, LLC v. Commissioner of Ins., supra, 315 Conn.
216. If resort to the declaratory relief afforded by §§ 4-
175 and 4-176 is foreclosed due to the pendency of the
aforementioned administrative proceedings identified
in the plaintiff’s complaint, logic dictates that declara-
tory relief via an independent civil action in the Superior
Court likewise is foreclosed. To conclude otherwise
would run afoul of both the prudential and the constitu-
tional underpinnings of the exhaustion doctrine.
Pursuant to that doctrine, the plaintiff was required
to exhaust its remedies in those pending administrative
proceedings. Should the plaintiff prevail therein, unnec-
essary judicial intervention would be averted, consis-
tent with the well recognized principle that ‘‘whenever
possible, courts will stay their hand with respect to
addressing matters that are within the cognizance of
administrative agencies.’’ Id., 212. If the plaintiff does
not prevail, it nevertheless would have ‘‘access to an
administrative remedy’’; id., 207; in the form of an
administrative appeal pursuant to § 4-183.
As our Supreme Court has observed, ‘‘§ 4-18317 pro-
vides the proper avenue for reviewing an agency’s
actions. . . . Not only does that statute provide a right
of appeal from a final agency decision by an aggrieved
party, but it also includes an immediate right to appeal
from an adverse preliminary ruling if review of the
final agency decision would not provide an adequate
remedy.18 Moreover, the statutory framework includes
a means of staying an agency decision pending appeal.19
. . . Thus, a potentially aggrieved party is well pro-
tected by statute.’’20 (Citation omitted; footnotes
added.) Pet v. Dept. of Health Services, supra, 207 Conn.
352. In commencing this civil action while the Sotil,
Cipes, and Wills matters remained pending before the
commission, the plaintiff, to paraphrase our Supreme
Court, chose not to avail itself of the safeguards
afforded by § 4-183. See id.
In its memorandum of decision, the trial court con-
cluded that ‘‘[i]t is clear to the court that all the issues
raised by the [plaintiff] can be litigated and resolved in
the context of the [pending commission] proceedings,
and, if the [plaintiff] is unsuccessful, can be appealed to
the court or be the subject of a petition for a declaratory
ruling to [the commission].’’ We agree with that assess-
ment. If the plaintiff does not prevail in the pending
Sotil, Cipes, and Wills matters, it may bring an adminis-
trative appeal—interlocutory if necessary—before the
Superior Court pursuant to § 4-183. If the plaintiff ulti-
mately prevails in the Sotil, Cipes, and Wills matters,
its interests ostensibly will be vindicated, but to the
extent that any issues remain following the culmination
of those proceedings, the plaintiff then properly may
seek declaratory relief as provided by §§ 4-175 and 4-
176. In light of the pendency of the Sotil, Cipes, and
Wills proceedings before the commission, we conclude
that administrative remedies were available to the plain-
tiff that it was required to exhaust, including an appeal
pursuant to § 4-183, rather than commencing an inde-
pendent civil action for declaratory relief in the Superior
Court.21 See Housing Authority v. Papandrea, 222
Conn. 414, 423–24, 610 A.2d 637 (1992) (‘‘[w]hen a party
has a statutory right of appeal from a decision of the
administrative agency, [it] may not, instead of appeal-
ing, bring an independent action to test the very issues
which the [administrative] appeal was designed to test’’
[internal quotation marks omitted]).
II
The plaintiff nonetheless claims that it qualifies for
two exceptions to the exhaustion requirement. First, it
argues that its administrative remedies are futile and
inadequate. Second, the plaintiff claims that it need not
comply with the exhaustion requirement when chal-
lenging the jurisdiction of the commission. We disagree
with both contentions.
A
We begin by noting that ‘‘[n]otwithstanding the
important public policy considerations underlying the
exhaustion requirement, [our Supreme Court] has
carved out several exceptions from the exhaustion doc-
trine . . . although only infrequently and only for nar-
rowly defined purposes. . . . Such narrowly defined
purposes include when recourse to the . . . remedy
would be futile or inadequate. . . . A remedy is futile
or inadequate if the decision maker is without authority
to grant the requested relief.’’ (Citations omitted; inter-
nal quotation marks omitted.) Garcia v. Hartford, 292
Conn. 334, 340, 972 A.2d 706 (2009). ‘‘It is futile to seek
a remedy only when such action could not result in a
favorable decision . . . .’’ O & G Industries, Inc. v.
Planning & Zoning Commission, 232 Conn. 419, 429,
655 A.2d 1121 (1995); see also Polymer Resources, Ltd.
v. Keeney, supra, 227 Conn. 563 (‘‘[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] proce-
dure . . . which [the litigant] has chosen to ignore’’
[internal quotation marks omitted]). To avail itself of
the futility exception, a plaintiff must establish ‘‘demon-
strable futility in pursuing an available administrative
remedy.’’ Pet v. Dept. of Health Services, supra, 207
Conn. 356.
The plaintiff has not satisfied that burden. It is undis-
puted that, at the time that it commenced this action,
the Sotil, Cipes, and Wills matters remained pending
before the commission. In each instance, the plaintiff
was the respondent. As this court has noted, proceed-
ings before the commission are not futile when ‘‘the
plaintiff’s claims can be addressed by way of defenses
to [the complainant’s] complaint.’’ Flanagan v. Com-
mission on Human Rights & Opportunities, 54 Conn.
App. 89, 92, 733 A.2d 881, cert. denied, 250 Conn. 925,
738 A.2d 656 (1999). Furthermore, the plaintiff has not
even argued, much less demonstrated, that it cannot
prevail before the commission in those pending pro-
ceedings. This case thus resembles Johnson v. Dept. of
Public Health, 48 Conn. App. 102, 114, 710 A.2d 176
(1998), in which we observed that the futility exception
did not apply because ‘‘[t]he plaintiff may prevail before
the agency. He has available an adequate remedy, recog-
nized under [§ 4-183], namely, to resort to the agency
proceedings that have been instituted, which he now
wants to bypass.’’
In its appellate reply brief, the plaintiff insists that
it is unlikely that the commission would rule in the
plaintiff’s favor and declare its own conduct to be
improper. We decline to view an administrative agency
of this state with such a jaundiced eye. As the United
States Supreme Court has noted, ‘‘[j]udicial intervention
into the agency process denies the agency an opportu-
nity to correct its own mistakes.’’ Federal Trade Com-
mission v. Standard Oil Co. of California, 449 U.S. 232,
242, 101 S. Ct. 488, 66 L. Ed. 2d 416 (1980). Moreover, the
plaintiff’s contention is pure speculation, which cannot
establish the requisite futility. See Polymer Resources,
Ltd. v. Keeney, supra, 227 Conn. 562 (‘‘a mere conclu-
sory assertion that an agency will not reconsider its
decision does not excuse compliance with the exhaus-
tion requirement’’); O & G Industries, Inc. v. Plan-
ning & Zoning Commission, supra, 232 Conn. 429
(when party’s suspicion of bias on part of zoning com-
mission is purely speculative, such suspicion does not
render exhaustion of administrative remedies futile);
LaCroix v. Board of Education, 199 Conn. 70, 84–85,
505 A.2d 1233 (1986) (‘‘the statutory remedies are not
rendered futile by the plaintiff’s conclusory assertion
that requesting and attending a hearing before the
defendant board would have been pointless in the face
of the board’s earlier decision to terminate his employ-
ment’’); Johnson v. Dept. of Public Health, supra, 48
Conn. App. 113 (‘‘[t]he mere allegation that [resort to
agency action] will prove [futile] is not cognizable’’).
As one court aptly observed, ‘‘[n]o doubt denial is the
likeliest outcome [in the administrative proceeding],
but that is not sufficient reason for waiving the require-
ment of exhaustion. Lightning may strike; and even if
it doesn’t, in denying relief the [agency] may give a
statement of its reasons that is helpful to the [court]
in considering the merits of the claim.’’ (Emphasis omit-
ted.) Greene v. Meese, 875 F.2d 639, 641 (7th Cir. 1989).
The record plainly reflects that the plaintiff is dis-
mayed by the resources which it must expend in
responding to complaints made with the commission.
The plaintiff also bemoans what, at times, can be a
protracted process before the commission. As its coun-
sel stated at oral argument before this court, an indepen-
dent action before the Superior Court provides a much
‘‘quicker’’ avenue of redress than what it describes in
its appellate reply brief as the ‘‘painfully slow process
utilized by the [commission].’’ That argument is con-
trary to our precedent, which instructs that ‘‘[i]t is no
answer for the plaintiff, in refusing to avail himself of
that administrative remedy, to claim that to do so may
prove more costly and less convenient than going
directly to Superior Court.’’ Johnson v. Dept. of Public
Health, supra, 48 Conn. App. 114; see also Federal Trade
Commission v. Standard Oil Co. of California, supra,
449 U.S. 244. Moreover, the plaintiff has not argued,
either before the trial court or on appeal, that the pre-
sent case qualifies under the ‘‘immediate and irrepara-
ble harm’’ exception to the exhaustion requirement.
See, e.g., Polymer Resources, Ltd. v. Keeney, supra, 227
Conn. 561.
The plaintiff’s claim of futility and inadequacy is fur-
ther undermined by the fact that if it does not prevail
in the pending proceedings before the commission, an
avenue of administrative appeal awaits the plaintiff pur-
suant to § 4-183.22 In such an appeal, an aggrieved party
may challenge an agency’s determinations on the basis
that they are ‘‘(1) In violation of constitutional or statu-
tory provisions; (2) in excess of the statutory authority
of the agency; (3) made upon unlawful procedure; (4)
affected by other error of law; (5) clearly erroneous in
view of the reliable, probative, and substantial evidence
on the whole record; or (6) arbitrary or capricious or
characterized by abuse of discretion or clearly unwar-
ranted exercise of discretion.’’ General Statutes § 4-183
(j). The plaintiff has not articulated any reason why
such an appeal would be inadequate. Section 4-183
‘‘[n]ot only . . . [provides] a right of appeal from a
final agency decision by an aggrieved party, but it also
includes an immediate right to appeal from an adverse
preliminary ruling if review of the final agency decision
would not provide an adequate remedy. Moreover, the
statutory framework includes a means of staying an
agency decision pending appeal. . . . Thus, a poten-
tially aggrieved party is well protected by statute.’’ (Cita-
tion omitted; footnote omitted.) Pet v. Dept. of Health
Services, supra, 207 Conn. 352. As our Supreme Court
has observed, ‘‘a claim that an administrative agency
has exceeded its statutory authority or jurisdiction may
be the subject of an administrative appeal.’’ Payne v.
Fairfield Hills Hospital, 215 Conn. 675, 679, 578 A.2d
1025 (1990).
The gravamen of the plaintiff’s complaint is that the
commission has acted in contravention of its statutory
and regulatory obligations.23 The plaintiff has offered
no explanation as to why an appeal pursuant to § 4-183
would be inadequate to review such claims, particularly
when that statute expressly encompasses allegations
that an agency has acted in violation of statutory provi-
sions, in excess of its statutory authority, or upon
unlawful procedure; General Statutes § 4-183 (j); or why
the Superior Court in such an appeal could not provide
the plaintiff with adequate relief.24 Indeed, the record
before us reflects, and the trial court in this case found,
that the plaintiff availed itself of its avenue of appeal
pursuant to § 4-183 with respect to the Dixon and Smith
matters referenced in its complaint. See footnote 19 of
this opinion.
Moreover, in the pending Sotil, Cipes, and Wills
administrative proceedings, the plaintiff is free to
advance, as defenses to the complainants’ allegations;
see Flanagan v. Commission on Human Rights &
Opportunities, supra, 54 Conn. App. 92; its claims that
§ 46a-71 does not apply to the plaintiff and that the
commission lacks jurisdiction over complaints filed by
independent contractors, as alleged in the present com-
plaint. If the commission ultimately rejects those con-
tentions, the plaintiff could appeal that adverse ruling
to the Superior Court pursuant to § 4-183. See Cannata
v. Dept. of Environmental Protection, 215 Conn. 616,
629, 577 A.2d 1017 (1990) (‘‘[i]f the commissioner denies
the plaintiffs [relief in the administrative proceeding],
they can then pursue an appeal to the Superior Court
pursuant to § 4-183 challenging the commissioner’s
jurisdiction and her decision’’). In that event, the
reviewing court may find helpful the stated basis of the
commission’s ruling in considering the merits of the
plaintiff’s claim. Greene v. Meese, supra, 875 F.2d 641. To
the extent that the plaintiff asserts something vaguely
resembling a capable of repetition, yet evading review
argument with respect to the disposition of such admin-
istrative proceedings; see generally Loisel v. Rowe, 233
Conn. 370, 382, 660 A.2d 323 (1995); we reiterate that,
once those pending matters have concluded, the plain-
tiff properly may seek declaratory relief as provided by
§§ 4-175 and 4-176. See footnote 20 of this opinion.
In considering the proper role of the exhaustion
requirement in the administrative context, this nation’s
highest court has cautioned that judicial review of
agency action ‘‘should not be a means of turning prose-
cutor into defendant before adjudication concludes.’’
Federal Trade Commission v. Standard Oil Co. of Cali-
fornia, supra, 449 U.S. 243. We concur with that senti-
ment, and conclude that the plaintiff has not established
demonstrable futility in pursuing its administrative rem-
edies before the commission. See Pet v. Dept. of Health
Services, supra, 207 Conn. 356. Accordingly, the plain-
tiff’s failure to exhaust its administrative remedies can-
not be salvaged by the futility exception.
B
The plaintiff also argues that, because it is contesting
the jurisdiction of the commission, it need not comply
with the exhaustion requirement. It posits that there
exists a broad exception to the exhaustion requirement
that is implicated when the jurisdiction of an adminis-
trative agency is challenged. A review of Connecticut
precedent reveals otherwise.
The appellate courts of this state repeatedly have
recognized that ‘‘a claim that an administrative agency
has exceeded its statutory authority or jurisdiction may
be the subject of an administrative appeal.’’ Payne v.
Fairfield Hills Hospital, supra, 215 Conn. 679; see also
Republican Party of Connecticut v. Merrill, supra, 307
Conn. 479; Housing Authority v. Papandrea, supra,
222 Conn. 424; Sastrom v. Psychiatric Security Review
Board, 105 Conn. App. 477, 481, 938 A.2d 1233 (2008);
Johnson v. Dept. of Public Health, supra, 48 Conn. App.
112. The plaintiff nonetheless argues that the jurispru-
dence of this state’s highest court has established a
jurisdictional exception to the exhaustion requirement,
relying principally on Aaron v. Conservation Commis-
sion, 178 Conn. 173, 422 A.2d 290 (1979). That reliance
is unavailing.
Aaron did not involve an administrative proceeding
pursuant to the UAPA, but rather a municipal land use
proceeding. Id., 174–75. In discussing exceptions to the
exhaustion requirement, the court stated: ‘‘[O]ne such
exception is that resort to administrative agency proce-
dures will not be required when the claims sought to
be litigated are jurisdictional. . . . Another exception
is that exhaustion of administrative remedies will not
be required when the remedies available are futile or
inadequate.’’ (Citations omitted.) Id., 179. The court’s
subsequent analysis of those two exceptions consisted
of two sentences: ‘‘In the present case there is some
question as to whether the plaintiff’s claims could prop-
erly be litigated by way of appeal because of the rule
that a party who seeks some advantage under a statute
or ordinance, such as a permit or a variance, is pre-
cluded from subsequently attacking the validity of the
statute or ordinance. . . . In light of the above, this
court is compelled to conclude that the trial court erred
in declining to assume jurisdiction on the ground that
the plaintiff should be left to seek redress by other
forms of procedure.’’ (Citations omitted.) Id., 179–80.
In so doing, the court recognized the procedural unique-
ness of that case, in that it involved the standing of a
party that has secured a land use permit or variance
from a municipal land use agency.
Ten years after Aaron was decided, our Supreme
Court directly addressed the exhaustion requirement
in the context of a party’s challenge to the jurisdiction
of an administrative agency. In Greater Bridgeport
Transit District v. Local Union 1336, 211 Conn. 436,
559 A.2d 1113 (1989), the court framed the issue before
it as ‘‘whether the trial court erred in dismissing, for lack
of subject matter jurisdiction, an independent action
challenging the scope of an administrative agency’s
jurisdiction . . . .’’ Id., 436. It then determined that the
exclusive power to determine the agency’s jurisdiction
in the first instance belonged to the agency, and not to
the courts. As it stated: ‘‘The present appeal requires
us to determine whether an administrative agency has
exclusive initial power to determine its own jurisdiction
in a particular case. . . . A claim that an administrative
agency has acted beyond its statutory authority or juris-
diction properly may be the subject of an administrative
appeal. . . . Where there is in place a mechanism for
adequate judicial review, such as that contained in § 4-
183, [i]t is [the] general rule that an administrative
agency may and must determine whether it has jurisdic-
tion in a particular situation. When a particular statute
authorizes an administrative agency to act in a particu-
lar situation it necessarily confers upon such agency
authority to determine whether the situation is such as
to authorize the agency to act—that is, to determine
the coverage of the statute—and this question need not,
and in fact cannot, be initially decided by a court. . . .
We are persuaded that the jurisdictional claim raised
in the plaintiff’s complaint to the Superior Court is
properly, and exclusively, within the power of the
board to decide in the first instance. The plaintiff may
then, if necessary, raise the jurisdictional issue on
administrative appeal pursuant to . . . § 4-183.’’25
(Citations omitted; emphasis added; internal quotation
marks omitted.) Id., 438–40. That decision did not
acknowledge Aaron in any manner.
The Supreme Court revisited the issue one year later.
In Cannata v. Dept. of Environmental Protection,
supra, 215 Conn. 616, the plaintiffs—like the plaintiff
here—relied on Aaron for their argument that a chal-
lenge to the jurisdiction of an administrative agency
qualifies for ‘‘an exception to the exhaustion require-
ment.’’ Id., 621. The court rejected that argument and,
in light of Greater Bridgeport Transit District, held
that the agency ‘‘must first be given the opportunity to
determine its own jurisdiction.’’ Id., 622–23. Signifi-
cantly, the court also addressed the apparent conflict
between Aaron and Greater Bridgeport Transit Dis-
trict on this issue. It stated: ‘‘Although it may be possible
to distinguish the two cases on the basis of differences
in the relief sought and the availability of an administra-
tive remedy, we regard Greater Bridgeport Transit Dis-
trict as implicitly overruling [Aaron] with respect to
the absence of an exhaustion requirement for the deter-
mination of an agency’s jurisdiction when an adequate
administrative remedy is available.’’ Id., 622 n.7. The
Supreme Court has not cited to or relied on Aaron
since. In subsequent years, our appellate courts have
adhered to the precept that such jurisdictional chal-
lenges properly are within the purview of the adminis-
trative agency in the first instance. See, e.g., Polymer
Resources, Ltd. v. Keeney, supra, 227 Conn. 558; O &
G Industries, Inc. v. Planning & Zoning Commission,
supra, 232 Conn. 425; Canterbury v. Deojay, 114 Conn.
App. 695, 708–709, 971 A.2d 70 (2009); Wilkinson v.
Inland Wetlands & Watercourses Commission, 24
Conn. App. 163, 167, 586 A.2d 631 (1991).
Equally misplaced is the plaintiff’s reliance on Heslin
v. Connecticut Law Clinic of Trantolo & Trantolo, 190
Conn. 510, 461 A.2d 938 (1983), for the proposition that
‘‘a respondent before an administrative agency need
not wait until the agency issues a final decision before
taking an appeal pursuant to [§ 4-183], but instead may
bring a declaratory judgment action [in the Superior
Court] to challenge the agency’s exercise of jurisdic-
tion.’’ Heslin did not involve a question of the agency’s
jurisdiction, but rather involved a question of ‘‘the legis-
lature’s constitutional power to regulate attorney con-
duct.’’ Id., 515. In addressing that question, the court
explained that ‘‘[i]t is presumed that, in authorizing
[administrative] investigations, the legislature has dele-
gated to the administrative body a power which the
legislature lawfully possesses. Where, however, a color-
able claim is made that the preliminary investigation
is not within the power of [the legislature] to command
. . . that presumption is rebutted.’’ (Citation omitted;
emphasis added; internal quotation marks omitted.) Id.
When such a colorable claim is raised, Heslin instructs
that ‘‘[i]t then becomes necessary and proper for the
trial court to determine, before proceeding further, the
authority of [the] administrative agency to act.’’ Id.; see
also Commission on Human Rights & Opportunities
v. Archdiocesan School Office, supra, 202 Conn. 606–607
(noting that Heslin exception applies ‘‘where the legis-
lative authority to empower the agency to conduct the
investigation itself is challenged’’). In this case, the
plaintiffs have not raised any claim as to the legislature’s
authority with respect to commission conduct. Heslin,
therefore, is inapposite to the present case.
Consistent with the ample body of Connecticut
authority adhering to the precept that such jurisdic-
tional challenges properly are within the purview of the
administrative agency, and the mandate of Cannata v.
Dept. of Environmental Protection, supra, 215 Conn.
622 n.7 in particular, we reject the plaintiff’s assertion
that there exists a broad exception to the exhaustion
requirement for challenges to the jurisdiction of an
administrative agency. Such challenges are ‘‘properly,
and exclusively, within the power of the board to decide
in the first instance.’’ Greater Bridgeport Transit Dis-
trict v. Local Union 1336, supra, 211 Conn. 439–40.
Accordingly, the plaintiff was obligated to raise its chal-
lenge to the jurisdiction of the commission in the pend-
ing administrative proceedings and, if necessary, an
appeal pursuant to § 4-183 or a subsequent declaratory
petition pursuant to § 4-176.
C
We further note that, in addition to seeking declara-
tory relief, the plaintiff’s complaint requests injunctive
relief and a writ of mandamus. The inclusion of those
requests does not obviate the need for the plaintiff to
comply with the exhaustion requirement.
It well established that a plaintiff’s preference for
particular relief has little bearing on the adequacy of
an administrative remedy. As our Supreme Court has
observed, ‘‘it does not matter for exhaustion purposes
that [the available] administrative remedies could not
provide the relief the plaintiffs preferred . . . . It is
well established . . . [t]he plaintiff’s preference for a
particular remedy does not determine the adequacy of
that remedy. [A]n administrative remedy, in order to
be adequate, need not comport with the [plaintiff’s]
opinion of what a perfect remedy would be.’’ (Internal
quotation marks omitted.) Lopez v. Board of Education,
supra, 310 Conn. 601 n.23; see also Concerned Citizens
of Sterling v. Sterling, 204 Conn. 551, 559, 529 A.2d 666
(1987) (‘‘we have never held that the mere possibility
that an administrative agency may deny a party the
specific relief requested is a ground for an exception
to the exhaustion requirement’’).
In addition, this court has held that a plaintiff cannot
bypass the exhaustion requirement simply by including
a variety of requests in its prayer for relief. In Johnson
v. Dept. of Public Health, supra, 48 Conn. App. 120, we
stated in relevant part: ‘‘[T]he plaintiff may not bypass
the UAPA exhaustion requirement by filing this self-
styled independent civil action. . . . In attempting to
circumvent his available administrative remedy by this
independent civil action, the plaintiff maintains that he
can do this because he is seeking other relief whether
it sounds contract or tort, declaratory judgment or
injunctive relief and the like. This approach fails
because, on analysis, the factual predicate for his claims
relate back to the alleged statutory violations, which
provide for a statutory remedy. When the legislature
enacts a comprehensive remedial scheme such as the
UAPA with procedural safeguards by which claims are
to be determined by an administrative agency before
judicial review is made available, it has laid that down
as the public policy most likely to produce results. To
effectuate this public policy, the legislative intent is that
the trial court should not, generally speaking, act or be
called upon to act, until there has been compliance with
the statutory scheme. . . . [O]ur Supreme Court . . .
[has] frequently held that where a statute has estab-
lished a procedure to redress a particular wrong a per-
son must follow the specific remedy and may not
institute a proceeding that might have been permissible
in the absence of such a statutory procedure. . . . The
plaintiff’s independent civil action contravenes [that
precedent]. He is attempting, under circumstances that
are impermissible, to prevent the making of a proper
record of agency action, including a decision on the
issues, for proper judicial review.’’ (Citations omitted;
internal quotation marks omitted.) See also Housing
Authority v. Papandrea, supra, 222 Conn. 423 (‘‘[w]e
affirm the principle . . . that a claim for injunctive
relief does not negate the requirement that the com-
plaining party exhaust administrative remedies’’).
In Savoy Laundry, Inc. v. Stratford, 32 Conn. App.
636, 642, 630 A.2d 159, cert. denied, 227 Conn. 931, 632
A.2d 704 (1993), this court similarly observed that ‘‘[t]he
plaintiff may not choose its administrative remedy
through the framing of its own complaint. If that were
possible, the purpose of the exhaustion doctrine would
be thwarted.’’ That precedent is wholly consistent with
our Supreme Court’s admonition that ‘‘a party who has
a statutory right of appeal from a decision of the admin-
istrative agency may not bring an independent action
to test the very issues that the [administrative] appeal
was designed to test.’’ Payne v. Fairfield Hills Hospital,
supra, 215 Conn. 679; accord McNish v. American Brass
Co., 139 Conn. 44, 53, 89 A.2d 566 (1952) (‘‘[w]hen an
administrative remedy is provided by law, relief must
be sought by exhausting this remedy before resort to
the courts’’).
III
As a final matter, the plaintiff claims that the court
improperly dismissed its due process count. Because
that count was brought pursuant to 42 U.S.C. § 1983,
the plaintiff maintains that the exhaustion doctrine does
not apply.
To be sure, the United States Supreme Court, in Patsy
v. Board of Regents of the State of Florida, 457 U.S.
496, 501, 102 S. Ct. 2557, 73 L. Ed. 2d 172 (1982), held
that exhaustion of administrative remedies is not a pre-
requisite to an action under § 1983.26 The Connecticut
Supreme Court nonetheless has held that, ‘‘notwith-
standing Patsy v. Board of Regents of the State of Flor-
ida, supra, the fundamental requirement of inadequacy
of an available legal remedy in order to obtain injunctive
relief remains in full force.’’27 Pet v. Dept. of Health
Services, supra, 207 Conn. 369. The court continued:
‘‘The inadequacy of an available legal remedy is a stan-
dard prerequisite for injunctive relief. We do not view
[Patsy] as having abrogated this fundamental require-
ment for injunctive relief . . . . A fortiori, it remains
a condition precedent to injunctive relief in a state court
. . . .’’ (Internal quotation marks omitted.) Id. When an
adequate administrative remedy exists, the court held
that ‘‘no form of injunctive relief, under § 1983 or other-
wise, is justified as an exception to the exhaustion
requirement . . . .’’ Id. The court thus concluded that
the plaintiff’s inclusion of a § 1983 count in his com-
plaint ‘‘does not permit the plaintiff to avoid the exhaus-
tion doctrine.’’ Id., 370; see also Laurel Park, Inc. v.
Pac, 194 Conn. 677, 691, 485 A.2d 1272, 1279 (1984);
Flanagan v. Commission on Human Rights & Oppor-
tunities, supra, 54 Conn. App. 95.
On appeal, the plaintiff acknowledges that precedent,
but claims that it may still prevail because it had no
adequate administrative remedy. This court has
rejected that claim in part II A of this opinion. The
plaintiff, therefore, cannot ‘‘forestall an invocation of
the exhaustion doctrine’’ due to the inclusion of a § 1983
count in its complaint. Pet v. Dept. of Health Services,
supra, 207 Conn. 370.
IV
In sum, we conclude that the plaintiff had adequate
administrative remedies that it failed to exhaust prior
to commencing this independent civil action in the
Superior Court, namely, recourse in the pending Sotil,
Cipes, and Wills proceedings before the commission
and the corresponding avenue of administrative appeal
provided by § 4-183. Moreover, to the extent that any
issues remain after those pending proceedings con-
clude, § 4-176 permits the plaintiff to petition the com-
mission for a declaratory ruling, which ruling itself then
would be appealable pursuant to § 4-183. It is undis-
puted that the plaintiff in this case did not exhaust
those administrative remedies prior to commencing this
independent civil action. The trial court therefore prop-
erly dismissed the plaintiff’s complaint for lack of sub-
ject matter jurisdiction.
The judgment is affirmed.
In this opinion the other judges concurred.
1
We note that the plaintiff has been identified alternatively as the Metro-
politan District and the Metropolitan District Commission in our case law.
See, e.g., Blonski v. Metropolitan District Commission, 309 Conn. 282, 284,
71 A.3d 465 (2013); Metropolitan District v. Burlington, 241 Conn. 382, 384,
696 A.2d 969 (1997); Brusby v. Metropolitan District, 160 Conn. App. 638,
641, 127 A.3d 257 (2015); Metropolitan District Commission v. Connecticut
Resources Recovery Authority, 130 Conn. App. 132, 134, 22 A.3d 651 (2011).
In the present case, the plaintiff identifies itself as ‘‘The Metropolitan Dis-
trict’’ in its complaint and has been referred to as such throughout this liti-
gation.
2
General Statutes § 46a-83 ‘‘outlines the procedure that the commission
must follow’’ upon receiving a complaint. Lyon v. Jones, 291 Conn. 384,
398, 968 A.2d 416 (2009). General Statutes (Rev. to 2015) § 46a-83 (b) provides
in relevant part: ‘‘Within ninety days of the filing of the respondent’s answer
to the complaint, the executive director [of the commission] or the executive
director’s designee shall conduct a merit assessment review. The merit
assessment review shall include the complaint, the respondent’s answer
and the responses to the commission’s requests for information, if any,
and the complainant’s comments, if any, to the respondent’s answer and
information responses. If the executive director or the executive director’s
designee determines that the complaint fails to state a claim for relief or is
frivolous on its face, that the respondent is exempt from the provisions of
this chapter or that there is no reasonable possibility that investigating the
complaint will result in a finding of reasonable cause, the executive director
or the executive director’s designee shall dismiss the complaint . . . .’’
Section 46a-54-42a (a) of the Regulations of Connecticut State Agencies
provides in relevant part that ‘‘[p]rior to service of a complaint or an amended
complaint upon the respondent, the commission shall review the complaint
to determine jurisdiction over the complaint. The review shall include a
determination of whether the complaint is timely filed, alleges a discrimina-
tory practice . . . and contains other matters necessary to the commission’s
jurisdiction over the complaint . . . .’’
Section 46a-54-49a (b) of the Regulations of Connecticut State Agencies
provides: ‘‘The executive director or the executive director’s designee shall
dismiss the complaint if he or she determines:
‘‘(1) The complaint fails to state a claim for relief;
‘‘(2) The complaint is frivolous on its face;
‘‘(3) The respondent is exempt from the provisions of chapter 814c of
the Connecticut General Statutes; or
‘‘(4) There is no reasonable possibility that investigating the complaint
will result in a finding of reasonable cause.’’
3
As examples of the commission’s allegedly improper conduct, the plain-
tiff in its complaint cites to Dixon v. Metropolitan District Commission,
Docket No. 1210313; Smith v. Metropolitan District Commission, Docket
No. 1210147; Sotil v. Metropolitan District Commission, Docket No.
1410490; Cipes v. Metropolitan District Commission, Docket No. 1440395;
and Wills v. Metropolitan District Commission, for which no docket number
was provided.
4
The complaint alleges in relevant part that the commission ‘‘engaged in
the following routine practices:
‘‘1. Issuing complaints to respondents without first determining that the
[commission] has jurisdiction over the complaint allegations;
‘‘2. Retaining jurisdiction over complaints without conducting the merit
assessment review required by statute and regulations;
‘‘3. Ordering the parties to mandatory mediation without conducting the
necessary merit assessment review;
‘‘4. Issuing reasonable cause findings by [commission] employees who
have not conducted the investigation required by the statute and regulations;
‘‘5. Issuing reasonable cause findings without providing respondents with
an opportunity to comment on draft reasonable cause findings.’’
5
Titled ‘‘[d]iscriminatory practices by state agencies prohibited,’’ General
Statutes § 46a-71 provides: ‘‘(a) All services of every state agency shall be
performed without discrimination based upon race, color, religious creed,
sex, gender identity or expression, marital status, age, national origin, ances-
try, intellectual disability, mental disability, learning disability, physical dis-
ability, including, but not limited to, blindness.
‘‘(b) No state facility may be used in the furtherance of any discrimination,
nor may any state agency become a party to any agreement, arrangement
or plan which has the effect of sanctioning discrimination.
‘‘(c) Each state agency shall analyze all of its operations to ascertain
possible instances of noncompliance with the policy of sections 46a-70 to
46a-78, inclusive, and shall initiate comprehensive programs to remedy any
defect found to exist.
‘‘(d) Every state contract or subcontract for construction on public build-
ings or for other public work or for goods and services shall conform to
the intent of section 4a-60.’’
6
The complaint also requests an injunction ‘‘enjoining the [commission]
from holding its fact-finding conference in the Sotil [v. Metropolitan District
Commission, Docket No. 1410490] case scheduled for February 4, 2016,’’
which was pending before the commission at the time that the plaintiff’s
complaint was filed. It is undisputed that the fact-finding conference before
the commission transpired on February 4, 2016, and that the commission
thereafter determined that it had jurisdiction over the matter, as evidenced
by the February 19, 2016 written notice to the parties furnished by Brian
D. Festa, a human rights attorney with the commission. That notice was
appended as an exhibit to the commission’s March 15, 2016 reply to the
plaintiff’s objection to the motion to dismiss.
7
In its motion to dismiss, the commission also alleged that the plaintiff
lacked standing to request a writ of mandamus pursuant to General Statutes
§ 52-485 and Practice Book § 23-45, the latter of which provides in relevant
part that ‘‘[a]n action of mandamus may be brought in an individual right
by any person who claims entitlement to that remedy to enforce a private
duty owed to that person . . . .’’ (Emphasis added.) The commission thus
argued that the plaintiff lacked standing because it ‘‘seeks a writ that is not
based upon an individual right to enforce a private duty owed it.’’ The court
did not address that argument in its memorandum of decision, and the
plaintiff has raised no claim related thereto in this appeal. We therefore
confine our review to the claims distinctly presented in this appeal, which
pertain solely to the issue of exhaustion of administrative remedies.
8
The court also concluded that it lacked jurisdiction over the plaintiff’s
complaint ‘‘because the plaintiff failed to exhaust the administrative reme-
dies available through the agency proceedings and the appellate process
available after them.’’
9
‘‘General Statutes § 4-166 (3) provides in relevant part: ‘ ‘‘Final decision’’
means . . . (B) a declaratory ruling issued by an agency pursuant to section
4-176. . . .’ ’’ Republican Party of Connecticut v. Merrill, supra, 307 Conn.
477 n.6. Since that case was decided, what had been subdivision (3) of § 4-
166 was renumbered as subdivision (5). See Public Acts 2014, No. 14-187, § 1.
10
‘‘General Statutes § 4-176 (h) provides in relevant part: ‘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. . . .’ ’’ Republican Party of Connecticut v. Merrill, supra, 307
Conn. 477 n.7.
11
‘‘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.’ ’’
Republican Party of Connecticut v. Merrill, supra, 307 Conn. 478 n.8.
12
In their petition, the plaintiffs in that case sought a declaratory ruling
‘‘with respect to seven questions concerning the legality of their conduct
in the sale of life insurance policies.’’ Financial Consulting, LLC v. Commis-
sioner of Ins., supra, 315 Conn. 202.
13
At the March 31, 2016 hearing before the trial court, counsel for the
commission informed the court that administrative appeals before the Supe-
rior Court already had transpired in the Dixon and Smith matters. The
plaintiff’s counsel acknowledged those appeals and informed the court that
the Smith matter had ‘‘settled’’ and that ‘‘[t]he Dixon matter is also over
. . . . [W]e brought these cases to the court’s attention in our complaint
not because they hadn’t been resolved but because they show the pattern and
practice of the agency exceeding its statutory and regulatory jurisdiction.’’
14
Paragraphs nine and ten of the complaint allege in relevant part: ‘‘[I]n
Sotil v. Metropolitan District Commission, Docket No. 1410490, by letter
dated September 18, 2014, and by various letters thereafter, counsel for the
[plaintiff] advised counsel for the [commission] that the [commission] did
not have jurisdiction over the claims alleged in the Complaint. Nevertheless,
the [commission] issued a notice of retention following merit assessment
review, and before the [plaintiff] had an opportunity to timely reply to the
Complainant’s response to its position statement. Thereafter, by letter dated
June 12, 2015, counsel for the [plaintiff] advised counsel for the [commission]
that . . . the [commission] does not have jurisdiction over claims arising
under 42 U.S.C. [§] 1981 against the [plaintiff]. Nevertheless, the [commis-
sion] refused to dismiss the claim. In short, the [commission] has failed and
continues to fail to conduct proper merit assessments and reviews. Upon
information and belief, the [commission] has instituted a practice of routinely
retaining jurisdiction over cases without engaging in the merit assessment
review process. . . .
‘‘Prior to service of a complaint or an amended complaint upon the respon-
dent, the commission shall review the complaint to determine jurisdiction
over the complaint. . . . Upon information and belief, the [commission]
has routinely failed to review complaints filed with it to determine whether
the [commission] has jurisdiction over the complaint. Rather, the [commis-
sion] only has jurisdiction of claims against the [plaintiff] by ‘employees,’
as that term is defined in the statute. . . . [I]n Sotil, the [commission] served
a complaint upon the [plaintiff] notwithstanding the [complainant was] not
[an employee] of the [plaintiff] but admittedly [is an] independent [con-
tractor].’’
15
As previously noted, the motion to dismiss, in addition to admitting
all facts well pleaded, ‘‘invokes any record that accompanies the motion,
including supporting affidavits that contain undisputed facts.’’ (Internal quo-
tation marks omitted.) Henriquez v. Allegre, supra, 68 Conn. App. 242.
Appended to the plaintiff’s memorandum of law in opposition to the motion
to dismiss was, inter alia, a copy of an e-mail chain among commission
officials from May of 2014, regarding the Sotil matter. Susan Horn, identified
therein as a ‘‘HRO Representative’’ with the commission, states in relevant
part that ‘‘[a]fter reviewing the intake sheet and the fifty-four pages of emails,
I have come to the conclusion that the complainant [in Sotil] has exceeded
the 180 days to file his complaint. . . .’’ After reviewing the commission’s
handling of the Sotil matter, Horn then states: ‘‘This situation presents an
essential issue: How will the commission be handling the processing of
contract compliance complaints in the future? Should the effort be central-
ized like [h]ousing?’’ In addition, appended to the commission’s reply to the
plaintiff’s objection to the motion to dismiss was the February 19, 2016
notice to the parties from Brian D. Festa, an attorney with the commission,
informing them in relevant part that, ‘‘[a]fter a thorough examination of the
evidence in the record . . . I have concluded that [the Sotil] complaint
is timely.’’
16
To the extent that the plaintiff seeks to avail itself of General Statutes
§ 52-29, rather than § 4-175, in pursuing this declaratory action in the Superior
Court, our Supreme Court has noted that ‘‘declaratory judgment actions
under § 4-175 are legally indistinguishable for exhaustion purposes from
actions brought pursuant to § 52-29, the general declaratory judgment stat-
ute.’’ Financial Consulting, LLC v. Commissioner of Ins., supra, 315 Conn.
216 n.15. The court further has explained that ‘‘§ 52-29, granting declaratory
judgment jurisdiction to the Superior Court, does not qualify as the type of
separate statutory authorization . . . that allows for a complete bypassing
of an administrative agency with undeniable jurisdiction over the subject
matter . . . . [O]ur case law makes clear that . . . broad statutory grants
of jurisdiction, such as § 52-29, are not intended to circumvent the well
established principles of exhaustion.’’ (Citations omitted; internal quotation
marks omitted.) River Bend Associates, Inc. v. Water Pollution Control
Authority, 262 Conn. 84, 105–106, 809 A.2d 492 (2002). Invoking § 52-29,
therefore, does not obviate a party’s obligation to exhaust its administrative
remedies before commencing an action in the Superior Court.
17
General Statutes § 4-183 (a) provides in relevant part: ‘‘A person who
has exhausted all administrative remedies available within the agency and
who is aggrieved by a final decision may appeal to the Superior Court as
provided in this section. . . .’’
18
General Statutes § 4-183 (b) provides: ‘‘A person may appeal a prelimi-
nary, procedural or intermediate agency action or ruling to the Superior
Court if (1) it appears likely that the person will otherwise qualify under
this chapter to appeal from the final agency action or ruling and (2) postpone-
ment of the appeal would result in an inadequate remedy.’’
19
General Statutes § 4-183 (f) provides in relevant part: ‘‘The filing of
an appeal shall not, of itself, stay enforcement of an agency decision. An
application for a stay may be made to the agency, to the court or to both.
Filing of an application with the agency shall not preclude action by the
court. . . .’’
20
At the hearing on the motion to dismiss, counsel for the commission
attested that, in two of the matters cited in the plaintiff’s complaint known
as Dixon v. Metropolitan District Commission and Smith v. Metropolitan
District Commission, the plaintiff availed itself of the remedies provided
by § 4-183 by bringing interlocutory administrative appeals raising issues
similar to those presented in this case. As counsel stated, ‘‘these [administra-
tive appeals] were heard in the [Superior Court] . . . and it’s the very same
issues that they put in their complaint here.’’ Attorney Kevin Shea, who was
present at that hearing due to his representation of the plaintiff in other
matters, confirmed that those administrative appeals were commenced in
the Superior Court. Counsel for the commission thus requested that the
court take judicial notice of those administrative appeals, which request
the court granted when the plaintiff’s counsel indicated that he had no
objection thereto.
In its memorandum of decision, the court noted that the plaintiff ‘‘has,
in fact, utilized the provisions of . . . § 4-183 to seek judicial review of
interlocutory decisions of [the commission]. For example, in the Dixon and
Smith cases cited in [the plaintiff’s] complaint, the [plaintiff] filed interlocu-
tory appeals from [the commission’s] reasonable cause finding. See Metro-
politan District Commission v. Commission on Human Rights &
Opportunities, Superior Court, judicial district of New Britain, Docket No.
CV-14-6024208; Metropolitan District Commission v. Commission on
Human Rights & Opportunities, Superior Court, judicial district of New
Britain, Docket No. CV-14-6024368.’’
21
If those administrative proceedings were not pending, we reiterate that,
absent an applicable exception to the exhaustion requirement, the plaintiff
would be required to avail itself of the remedy provided by § 4-176 prior to
commencing an independent action for declaratory relief in the Superior
Court. See, e.g., Financial Consulting, LLC v. Commissioner of Ins., supra,
315 Conn. 199 (compliance with § 4-176 a ‘‘precondition’’ to commencement
of declaratory action in Superior Court); Republican Party of Connecticut
v. Merrill, supra, 307 Conn. 478 (‘‘[t]his 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 challeng-
ing the legality of the agency’s action’’). Moreover, if the commission denied
a request for declaratory relief pursuant to § 4-176, the plaintiff could appeal
from that ruling to the Superior Court pursuant to § 4-183. Id., 477.
22
For that reason, Sastrom v. Psychiatric Security Review Board, 105
Conn. App. 477, 938 A.2d 1233 (2008), is plainly distinguishable. In Sastrom,
this court concluded that review pursuant to § 4-183 was not available to
the plaintiff due to the specific statutory provisions that govern review of
rulings by the defendant psychiatric security review board. Id., 484–85.
23
Ironically, the plaintiff, in commencing the present action, seeks to
bypass the statutory procedures contained in the UAPA that govern proceed-
ings before state agencies such as the commission.
24
As the Supreme Court observed in Laurel Park, Inc. v. Pac, 194 Conn.
677, 686, 485 A.2d 1272 (1984): ‘‘Despite the plaintiffs’ protestations to the
contrary, it is difficult to comprehend why a court would have been less
inclined to order a stay of the commissioner’s order upon a proper applica-
tion in the pending administrative appeal than to issue a temporary injunction
achieving the same result in a separate action. The same evidence presented
to the court in this action would have warranted the same relief in the
pending [administrative] appeal if the plaintiffs had followed the procedure
prescribed by the UAPA.’’
25
In so holding, Greater Bridgeport Transit District comports with Myers
v. Bethlehem Shipbuilding Corp., supra, 303 U.S. 41. In Myers, the defendant
had obtained an injunction in federal court against the National Labor Rela-
tions Board prohibiting it from holding certain hearings on the basis that
they were beyond the jurisdiction of the board. In reversing that injunctive
order, the United States Supreme Court rejected the claim that, because
the defendant had challenged the board’s jurisdiction, it would be subject
‘‘to irreparable damage, rights guaranteed by the Federal Constitution will
be denied unless it be held that the District Court has jurisdiction to enjoin
the holding of a hearing by the Board.’’ Id., 50. The court explained that
‘‘[s]o to hold would . . . in effect substitute the District Court for the Board
as the tribunal to hear and determine what Congress declared the Board
exclusively should hear and determine in the first instance. The contention
is at war with the long-settled rule of judicial administration that no one is
entitled to judicial relief for a supposed or threatened injury until the pre-
scribed administrative remedy has been exhausted. That rule has been
repeatedly acted on in cases where, as here, the contention is made that
the administrative body lacked power over the subject matter.’’ (Emphasis
added.) Id., 50–51. Accordingly, the court concluded that there was ‘‘no
reason why the Board should be prevented from exercising the exclusive
initial jurisdiction conferred upon it by Congress.’’ (Emphasis added; foot-
note omitted.) Id., 53.
26
One prominent commentary flatly states that the court should revisit
and overrule Patsy, opining that it ‘‘is a badly reasoned anomaly in the law
of exhaustion. The holding is not supported by a single word of statutory
text. It is inconsistent with the many powerful policy considerations that
have shaped the common law of exhaustion in all other contexts. . . .
[J]udicial review of state agency action under § 1983 is, and should be,
analogous to judicial review of federal agency actions under the [Administra-
tive Procedures Act].’’ 2 R. Pierce, Administrative Law Treatise (5th Ed. 2010)
§ 15.9, p.1298. Regardless of the merits of such criticism, reconsideration of
that precedent remains the prerogative of the United States Supreme Court.
27
In so doing, our Supreme Court distinguished the procedural context
of Pasty, noting that ‘‘it was a § 1983 action for damages in federal court
that the plaintiff argued should not be dismissed for failure to exhaust his
state remedies.’’ Pet v. Dept. of Health Services, supra, 207 Conn. 369.