Opinion
CV1852011402S
06-24-2019
Mary BAGNASCHI v. STATE of Connecticut et al.
UNPUBLISHED OPINION
Shaban, J.
I
STATEMENT OF THE CASE
The plaintiff, Mary Bagnaschi, commenced this action against the defendants, the Mayor of Torrington, Elinor Carbone, acting on behalf of the City of Torrington (City), and Claudia Sweeney, acting on behalf of the Torrington Housing Authority (THA) on November 5, 2018 and against the State of Connecticut (State) on November 21, 2018. Her Verified Complaint (#100.31) seeks declaratory relief.
The City has not filed a motion to dismiss the present action and, as such, all references to the "defendants" herein will refer to the State and THA.
The plaintiff alleges the following relevant facts. From 1999 to 2006, the plaintiff was employed by THA and suffered from post-traumatic stress disorder and anxiety. During her employment with THA, the plaintiff became aware of "certain facts of corruption or crimes involving her employer and officials within the government of the City of Torrington" that included, "among other things ... mismanagement [and] gross misuse of public funds and grants." The plaintiff then attempted to obtain additional proof of, and to expose, the purported corruption or crimes by filing complaints with various state, local and federal agencies. One of the complaints (whistleblower complaint) the plaintiff filed was with the Commission of Human Rights and Opportunities (CHRO) pursuant to General Statutes § 4-61dd. The plaintiff’s whistleblower complaint was dismissed on the ground that the THA was not a "municipal quasi-governmental agency" but was, instead, a "public body corporate" that was not subject to the provisions of § 4-61dd. As a result of the filing of her whistleblower complaint and the other complaints filed with various other agencies, the plaintiff was terminated from her employment and lost her home due to foreclosure. The plaintiff, however, "continued to expose, and to end, the corruption by filing additional complaints with various agencies." Thereafter, city and state officials "sanctioned her, discriminated against her due to her mental disabilities, arrested her on numerous misdemeanor charges, using undue physical force" and "on at least four separate occasions" subjected her to "compelled detention in correctional or secure hospital settings for months, where she was compelled to undergo psychological evaluation and forced medical treatment with dangerous drugs."
The plaintiff does not actually allege that she filed the whistleblower complaint with the CHRO. Based on the undisputed evidence in the record, however, it is apparent that she did file it with the CHRO.
Section 1-120(1) defines a "Quasi-public agency" as meaning "Connecticut Innovations, Incorporated, the Connecticut Health and Educational Facilities Authority, the Connecticut Higher Education Supplemental Loan Authority, the Connecticut Student Loan Foundation, the Connecticut Housing Finance Authority, the Connecticut Housing Authority, the Materials Innovation and Recycling Authority, the Capital Region Development Authority, the Connecticut Lottery Corporation, the Connecticut Airport Authority, the Connecticut Health Insurance Exchange, the Connecticut Green Bank, the Connecticut Retirement Security Authority, the Connecticut Port Authority and the State Education Resource Center." Section 4-61dd provides in relevant part: (a) Any person having knowledge of any matter involving corruption ... mismanagement, gross waste of funds ... occurring in ... any quasi-public agency, as defined in section 1-120 ... may transmit all facts and information in such person’s possession concerning such matter to the Auditors of Public Accounts. The Auditors of Public Accounts shall review such matter and report their findings and any recommendations to the Attorney General. Upon receiving such a report, the Attorney General shall make such investigation as the Attorney General deems proper regarding such report ... (b)(1) The Auditors of Public Accounts may reject any complaint received pursuant to subsection (a) of this section if the Auditors of Public Accounts determine one or more of the following: (A) There are other available remedies that the complainant can reasonably be expected to pursue; (B) The complaint is better suited for investigation or enforcement by another state agency; (C) The complaint is trivial, frivolous, vexatious or not made in good faith; (D) Other complaints have greater priority in terms of serving the public good; (E) The complaint is not timely or is too long delayed to justify further investigation; or (F) The complaint could be handled more appropriately as part of an ongoing or scheduled regular audit. (2) If the Auditors of Public Accounts reject a complaint pursuant to subdivision (1) of this subsection, the Auditors of Public Accounts shall provide a report to the Attorney General setting out the basis for the rejection.
The plaintiff makes the following additional allegations in Count One of her complaint. She claims the issues in dispute between the parties are: (1) "whether § 4-61dd applies to the [THA] and its employees and former employees such that when a complaint is filed pursuant to § 4-61dd, an investigation is required" and (2) "whether the [p]laintiff’s [whistleblower complaint] ... was dismissed [improperly]." These issues "relate to the proper roles of the Attorney General, the Auditors of Public Accounts, and employees and former employees of municipal housing authorities under ... § 4-61dd." The plaintiff claims that the parties "have a legal and equitable interest in the issues raised in the complaint and there is a need to have faith in ... § 4-61dd and the process for exposing corrupt practices." The plaintiff also asserts that "[t]here are no administrative remedies which the [p]laintiff can, or must, exhaust and there is no avenue for judicial redress which is appropriate or complete as the present action."
The plaintiff seeks a declaratory judgment holding that: (1) "The [THA] is a quasi-governmental agency, subject to the provisions of ... § 4-61dd"; (2) "Employees, and former employees, of the [THA], and any other such housing authority, are entitled to file a complaint pursuant to ... § 4-61dd"; (3) "The Attorney General and the Auditors of Public Accounts are required to accept, and to investigate, a complaint pursuant to ... § 4-61dd when filed by employees, or former employees, of the [THA] or other such municipal quasi-governmental agencies"; and (4) the plaintiff may refile her whistleblower complaint.
On January 10, 2019, the State filed a motion to dismiss (#102) as well as a memorandum of law in support thereof (#103) with evidence attached thereto. On January 18, 2019, THA filed its motion to dismiss (#105) as well as a memorandum of law in support thereof (#106). On February 11, 2019, the plaintiff filed an objection (#108) to the State’s motion to dismiss as well as an objection (#109) to THA’s motion to dismiss. On February 13, 2019, the State filed a reply memorandum (#110). On February 14, 2019, THA filed its own reply memorandum (#111). The court heard argument on the defendants’ motions on May 13, 2019.
II
STATEMENT OF LAW
"Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction." St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003); Practice Book § 10-30(a)(1). "Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it ... [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction ..." (Internal quotation marks omitted.) Keller v. Beckenstein, 305 Conn. 523, 531-32, 46 A.3d 102 (2012). "[T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n.12, 829 A.2d 801 (2003).
"When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, it must consider the allegations of the complaint in their most favorable light ... In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader ... [I]f the complaint is supplemented by undisputed facts established by ... public records of which judicial notice may be taken ... the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts and need not conclusively presume the validity of the allegations of the complaint ... Rather, those allegations are tempered by the light shed on them by the [supplementary undisputed facts] ... If ... evidence submitted in support of a defendant’s motion to dismiss conclusively establish that jurisdiction is lacking, and the plaintiff fails to undermine this conclusion with counteraffidavits ... or other evidence, the trial court may dismiss the action without further proceedings." (Citations omitted; emphasis in original; footnote omitted; internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 651-52, 974 A.2d 669 (2009).
III
DISCUSSION
The defendants move to dismiss the present action against them on the ground that the court lacks subject matter jurisdiction because: (1) the plaintiff failed to exhaust her administrative remedies by her failure to appeal the dismissal of her whistleblower complaint before the CHRO in 2006; (2) the plaintiff is collaterally estopped from bringing the present declaratory action because the CHRO adjudicated the same issues previously; and (3) the plaintiff lacks standing. Additionally, the State argues that § 4-61dd does not create a private right of action.
The plaintiff responds, arguing that: (1) she could not appeal the order dismissing the whistleblower complaint before the CHRO and, even if she had to, this is a different, broader action than the scope of the whistleblower complaint, which was limited to employment discrimination issues; (2) she is not collaterally estopped because the issues in the present action are not the same as the whistleblower complaint and, even if they are, the parties are not identical; (3) she has standing because the precise issue presented by this action is whether the plaintiff can bring a new whistleblower complaint in the future; (4) section 4-61dd establishes a private right of action; and (5) even if § 4-61dd does not establish a private right of action, Article First, § § 9 and 14 of the Connecticut Constitution establish a private right of action.
A Evidence Submitted
"[I]f the complaint is supplemented by undisputed facts established by ... public records of which judicial notice may be taken ... the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts and need not conclusively presume the validity of the allegations of the complaint ... If ... evidence submitted in support of a defendant’s motion to dismiss conclusively establish that jurisdiction is lacking, and the plaintiff fails to undermine this conclusion with counteraffidavits ... or other evidence, the trial court may dismiss the action without further proceedings." (Citations omitted; emphasis in original; internal quotation marks omitted.) Conboy v. State, supra, 292 Conn. 651-52.
Section 2-1 of the Connecticut Code of Evidence provides in relevant part: "(c) Kinds of Facts. A judicially noticed fact must be one not subject to reasonable dispute in that it is ... (2) generally accepted as true and capable of ready and unquestionable demonstration." The commentary to the Connecticut Code of Evidence § 2-1(c) states in relevant part that "the court may take judicial notice of the existence, content and legal effect of a court file, or of a specific entry in a court file if that specific entry is brought to the attention of the court, subject to the provisions of Section 2-2. Judicial notice of a court file or a specific entry in a court file does not establish the truth of any fact stated in that court file." (Footnote added.)
Section 2-2 of the Connecticut Code of Evidence provides in relevant part: "(b) Court’s Initiative. The court may take judicial notice without a request of a party to do so. Parties are entitled to receive notice and have an opportunity to be heard for matters susceptible of explanation or contradiction, but not for matters of established fact, the accuracy of which cannot be questioned."
"It is well settled that [f]actual allegations contained in pleadings upon which the cause is tried are considered judicial admissions and hence irrefutable as long as they remain in the case." (Internal quotation marks omitted.) Borrelli v. Zoning Board of Appeals of City of Middletown, 106 Conn.App. 266, 271, 941 A.2d 966 (2008). A judicial admission dispenses with the production of evidence by the opposing party as to the fact admitted, and is conclusive upon the party making it. Young v. Vlahos, 103 Conn.App. 470, 476, 929 A.2d 362 (2007), cert. denied, 285 Conn. 913, 943 A.2d 474 (2008).
In the present case, the plaintiff expressly alleged in paragraph 16 of her Verified Complaint that her whistleblower complaint was dismissed, which is binding upon her. Borrelli v. Zoning Board of Appeals of City of Middletown, supra, 106 Conn.App. 271; Young v. Vlahos, 103 Conn.App. 476. The plaintiff did not, however, allege which agency the plaintiff filed the whistleblower complaint with. The State has chosen to submit, and THA relies upon, Exhibit 1, which purports to be a copy of the decision dismissing the plaintiff’s whistleblower complaint: Bagnaschi-Maher v. Torrington Housing Authority, No. OPH/WBR-2005-013 (March 3, 2006) (decision of Commission on Human Rights & Opportunities). In her written objections and during oral argument before this court, the plaintiff did not dispute the defendants’ assertion that Exhibit 1 is a copy of Bagnaschi-Maher v. Torrington Housing Authority, supra, and tacitly acknowledged the authenticity of such by relying upon it to make her argument against the defendants’ motions at the May 13, 2019 hearing. Therefore, the court will review the allegations contained in the Verified Complaint in light of the existence, content and legal effect of Bagnaschi-Maher v. Torrington Housing Authority, supra . Conboy v. State, supra, 292 Conn. 651-52; Conn. Code Evid. § 2-1(c). Additionally, if the existence, content and legal effect of Bagnaschi-Maher v. Torrington Housing Authority, supra, establishes that the court lacks jurisdiction, the plaintiff has failed to submit any counterevidence, and, as such, dismissal would be required. Conboy v. State, supra .
B
Failure to Exhaust Administrative Remedies
Turning now to the merits of the present motions, the defendants first argue that the court lacks subject matter jurisdiction over the present action because the plaintiff failed to exhaust her administrative remedies by appealing the dismissal of her whistleblower complaint. The plaintiff argues that: (1) she could not appeal the order dismissing the whistleblower complaint before the CHRO; (2) even if she were able to file an appeal to the Superior Court from the dismissal of her whistleblower complaint, the relevant statutes contain no provision divesting an aggrieved person from initiating a private civil action to determine her rights under a particular statute when no request for a declaratory ruling was before the CHRO; and (3) even if she had to appeal the dismissal of her whistleblower complaint, resort to administrative remedies would have been futile or inadequate given the limited scope of the issues before the CHRO.
"[W]hen a party has a statutory right of appeal from a decision of an administrative agency, [s]he may not, instead of appealing, bring an independent action to test the very issues which the [administrative] appeal was designed to test." (Internal quotation marks omitted.) Housing Authority of East Hartford v. Papandrea, 222 Conn. 414, 423-24, 610 A.2d 637 (1991). "[A] party who is aggrieved by a decision of an administrative agency may not institute an independent action for the purpose of bypassing the [Uniform Administrative Procedure Act (UAPA) ] appeal process." Harwinton Drilling & Engineering Co. v. Public Utilities Control Authority, 188 Conn. 90, 98, 448 A.2d 210 (1982). "Under our exhaustion of administrative remedies doctrine, 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 remedy, the action must be dismissed ... We have recognized that a party aggrieved by a decision of an administrative agency may be excused from exhaustion of administrative remedies if: recourse to the administrative remedy would be futile or inadequate ... or injunctive relief from an agency decision is necessary to prevent immediate and irreparable harm." (Internal quotation marks omitted.) Levine v. Sterling, 300 Conn. 521, 528, 16 A.3d 664 (2011).
"When construing a statute, [the court’s] fundamental objective is to ascertain and give effect to the apparent intent of the legislature ... In other words, [the court] seek[s] 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, General Statutes § 1-2z directs [the court] first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered ... When a statute is not plain and unambiguous, [the court will then] look for interpretive guidance [from] the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter." (Footnote added; internal quotation marks omitted.) Fedus v. Planning & Zoning Commission, 278 Conn. 751, 756, 900 A.2d 1 (2006).
General Statutes § 1-2z provides: "The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered."
General Statutes (Rev. to 2005) § 46a-94a(a) provides in relevant part: "[A]ny complainant aggrieved by a final order of a presiding officer or any complainant aggrieved by the dismissal of his [or her] complaint by the commission for failure to attend a mandatory mediation session as provided in subsection (c) of section 46a-83, a finding of no reasonable cause as provided in subsection (d) of said section 46a-83 or rejection of reconsideration of any dismissal as provided in subsection (e) of said section 46a-83, may appeal therefrom in accordance with section 4-183."
The present version of § 46a-94a(a), as amended during a special session in June 2015; see Public Acts, Spec. Sess., June 2015, No. 15-5, § 81; provides in relevant part: "[A]ny complainant, aggrieved by a final order of a presiding officer, may appeal to the Superior Court in accordance with section 4-183. Any complainant may appeal to the Superior Court in accordance with section 4-183 of the complainant is aggrieved by (1) the dismissal of his or her complaint by the commission for failure to attend a mandatory mediation session as provided in subsection (m) of section 46a-83, (2) a finding of no reasonable cause as provided in subsection (g) of section 46a-83, or (3) rejection of reconsideration as provided in subsection (h) of section 46a-83."
"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. The filing of petition for reconsideration is not a prerequisite to the filing of such an appeal." General Statutes § 4-183. "Under [§ 4-183], it is [not] the function ... of [the court] to retry the case or to substitute its judgment for that of the administrative agency ... Even for conclusions of law, [t]he court’s ultimate duty is only to decide whether, in light of the evidence, the [agency] has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion ... [Thus] [c]onclusions of law reached by the administrative agency must stand if the court determines that they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts ... Cases that present pure questions of law ... invoke a broader standard of review than is ... involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion." (Citation omitted; internal quotation marks omitted.) Chairperson, Connecticut Medical Examining Board v. Freedom of Information Commission, 310 Conn. 276, 281-82, 77 A.3d 121 (2013).
Prior to the amendments to § 46a-94a(a) in June 2015, our Supreme Court in Commission on Human Rights & Opportunities v. Board of Education, 270 Conn. 665, 669-70, 855 A.2d 212 (2004), considered whether the CHRO, acting through a presiding human rights referee, properly dismissed a student’s racial discrimination complaint for lack of jurisdiction, which the CHRO appealed pursuant to § 46a-94a(a) and § 4-183. Impliedly, dismissal of a complaint for lack of jurisdiction at the agency level was a final decision that was reviewable on appeal, for the court reached the merits of that case, albeit did not conduct any analysis on this precise issue. See id.
In Bagnaschi-Maher v. Torrington Housing Authority, supra, Commission on Human Rights & Opportunities Decision No. OPH/WBR-2005-013, p. 3, the CHRO concluded that "the THA is not a quasi-public agency ... the complainant ... is not an employee of a quasi-public agency, and the complainant did not disclose information ... to any of the persons or entities listed in § 4-61dd(b)(1). Accordingly, this tribunal lacks jurisdiction over the complainant and it must be, and hereby is, dismissed." Pursuant to General Statutes (Rev. to 2005) § 46a-94a(a), the plaintiff could have appealed the dismissal of her whistleblower complaint to the Superior Court. The plaintiff conceded at oral argument that she did not appeal the CHRO’s dismissal of her whistleblower complaint.
Nevertheless, the plaintiff argues that she did not have to appeal because she could not appeal the dismissal of her whistleblower complaint pursuant to § 46a-94a(a) because the CHRO dismissed it for lack of jurisdiction, and not one of the three statutory conditions precedent, which included dismissal of the complaint because: (1) of a plaintiff’s failure to attend a mandatory mediation session; (2) the CHRO making a finding of no reasonable cause; and (3) the CHRO rejecting a plaintiff’s reconsideration of the complaint. This argument is fundamentally flawed because it improperly relies on the text of the present version of § 46a-94a(a) and not the version that was operative at the time the plaintiff filed her whistleblower complaint, which was General Statutes (Rev. to 2005) § 46a-94a(a). Construing that version of § 46a-94a(a), the text is plain and unambiguous that the plaintiff had available to her an administrative remedy with which she could have contested the dismissal of her whistleblower complaint for want of jurisdiction: an appeal to the Superior Court. Our Supreme Court has reviewed a case factually similar to the present case and not made an issue of the fact that such an appeal was brought pursuant to General Statutes (Rev. to 2005) § 46a-94a(a). See Commission on Human Rights & Opportunities v. Board of Education, supra, 270 Conn. 669-70.
While there may be a legitimate question as to whether subsections (1), (2) and (3) now limit which administrative decisions a complainant may appeal pursuant to § 46a-94a(a), the court does not need to reach this issue to dispose of the present motions.
In the alternative, the plaintiff argues that even if she were able to file an appeal to the Superior Court from the dismissal of her whistleblower complaint pursuant to § § 46a-94a(a) and 4-183, the CHRO’s enabling act and Uniform Administrative Procedure Act (UAPA) contain no provision divesting an aggrieved person from initiating a private civil action to determine her rights under a particular statute for failing to first appeal a decision when no request for a declaratory ruling was before the CHRO. This argument is hardly availing because it requires the court to ignore the plain text of § 4-183. Even if no declaratory action was pending before the CHRO, the Superior Court could still have entertained an appeal of the dismissal of the plaintiffs whistleblower complaint on the limited issue of whether the CHRO, through the presiding human rights referee, correctly interpreted § 4-61dd. The fact that there was no declaratory action pending before the CHRO is immaterial.
The plaintiff correctly notes that General Statutes § 4-175 permits a plaintiff to seek a declaratory judgment from the Superior Court as to the validity of a regulation, provision of the general statutes or a final decision to specified circumstances so long as the application or threatened application of such "interferes with or impairs, or threatens to interfere with or impair, the legal rights of privileges of the plaintiff ..."
Lastly, the plaintiff also argues in the alternative that the present action is broader in scope than the whistleblower complaint, which was limited to employment discrimination issues, and, as such, resort to administrative remedies would have been futile or inadequate. Just as with the previous two arguments, this argument is also flawed because, on the one hand, it asks the court to compare the scope of the present action and the whistleblower complaint, but, on the other hand, ignore the scope of the whistleblower complaint, at least insofar as the issue of the proper exhaustion of administrative remedies is concerned.
The issues presented in the whistleblower complaint were narrower than those presented in this action. In Bagnaschi-Maher v. Torrington Housing Authority, supra, Commission on Human Rights & Opportunities Decision No. OPH/WBR-2005-013, pp. 1, 3, the plaintiff alleged that THA and two of its directors retaliated against her because she engaged in protected whistleblowing activities pursuant to § 4-61dd(b)(3)(A), which was dismissed because "the THA is not a quasi-public agency, [the directors] are not employees of a quasi-public agency, the complainant ... is not an employee of a quasi-public agency, and the complainant did not disclose information ... to any of the persons or entities listed in § 4-61dd (b)(1)."
Here, the plaintiff seeks declaratory rulings on: (1) whether the THA is a quasi-governmental agency; (2) whether employees of the THA or other housing authorities are entitled to file a complaint pursuant to § 4-61dd; (3) whether former employees of the THA or other housing authorities are entitled to file a complaint pursuant to § 4-61dd; (4) whether the Attorney General is required to accept and to investigate a complaint pursuant to § 4-61dd when filed by employees or former employees of the THA or other municipal quasi-governmental agencies; (5) whether the Auditors of Public Accounts are required to accept and to investigate a complaint pursuant to § 4-61dd when filed by employees or former employees of the THA or other municipal quasi-governmental agencies; and, (6) whether the plaintiff may refile her whistleblower complaint with the Auditors of Public Accounts, assuming it was improperly dismissed in 2006.
There is some overlap in the issues presented in this action and the whistleblower complaint. Specifically, the first and second issue are the very same that were at issue and decided by the CHRO in Bagnaschi-Maher v. Torrington Housing Authority, supra, Commission on Human Rights & Opportunities Decision No. OPH/WBR-2005-013. Relative to these issues, the plaintiff was required to exhaust her administrative remedies, regardless of the broader, additional issues presented in the present action. This is because the Superior Court could have overruled the CHRO’s interpretation of § 4-61dd and, therefore, appealing would not have been inadequate or futile. Levine v. Sterling, supra, 300 Conn. 528. The last issue, the refiling of her whistleblower complaint, is also implicated by the exhaustion requirement because a plaintiff may not bring an independent action to test something she could have appealed. Housing Authority of East Hartford v. Papandrea, supra, 222 Conn. 423-24. The other three issues, however, are not subject to the exhaustion of administrative remedies requirement because these issues were not before the CHRO in 2006. See Bagnaschi-Maher v. Torrington Housing Authority, supra .
The court holds that the plaintiff failed to exhaust her administrative remedies when she failed to appeal the dismissal of her whistleblower complaint to the Superior Court in 2006 pursuant to § 46a-94a (a) (Rev. 2005) and dismisses the present action against the defendants as to the issues of whether the THA is a quasi-governmental agency, whether employees of the THA or other housing authorities are entitled to file a complaint pursuant to § 4-61dd and whether the plaintiff may refile her whistleblower complaint.
C Collateral Estoppel
The defendants next argue that the plaintiff is collaterally estopped from bringing the present declaratory action because the CHRO adjudicated the same issues previously. The plaintiff responds, arguing that she is not collaterally estopped because: (1) the issues the CHRO considered in Bagnaschi-Maher v. Torrington Housing Authority, supra, Commission on Human Rights & Opportunities Decision No. OPH/WBR-2005-013, are not the same as those raised in the present action; (2) alternatively, any similarity between the issues in the present case and those decided in the CHRO proceeding, should not result in dismissal of the present action because the prior holdings of the CHRO are dicta; and (3) even if there is an identity of issues, the parties to the two actions are not identical.
"The common-law doctrine of collateral estoppel, or issue preclusion, embodies a judicial policy in favor of judicial economy, the stability of former judgments and finality ... Collateral estoppel ... is that aspect of res judicata which prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action between the same parties upon a different claim ... For an issue to be subject to collateral estoppel, it must have been fully and fairly litigated in the first action. It also must have been actually decided and the decision must have been necessary to the judgment ... An issue is actually litigated if it is properly raised in the pleadings or otherwise, submitted for determination, and in fact determined ... An issue is necessarily determined if, in the absence of a determination of the issue, the judgment could not have been validly rendered ... [C]ollateral estoppel [is] based on the public policy that a party should not be able to relitigate a matter which it already has had an opportunity to litigate ... Stability in judgments grants to parties and others the certainty in the management of their affairs which results when a controversy is finally laid to rest ... [A]lthough most defenses cannot be considered on a motion to dismiss, a trial court can properly entertain a ... motion to dismiss that raises collateral estoppel grounds." (Citation omitted; internal quotation marks omitted.) Parker v. Commissioner of Correction, 169 Conn.App. 300, 313-14, 149 A.3d 174, cert. denied, 324 Conn. 903, 151 A.3d 1289 (2016).
Our Supreme Court has previously held that "the doctrine of collateral estoppel does not implicate a court’s subject matter jurisdiction ... Even when applicable, therefore, collateral estoppel does not mandate dismissal of a case." (Citations omitted.) State v. T.D., 286 Conn. 353, 360 n.6, 944 A.2d 288 (2008). Nevertheless, the Supreme Court has also repeated the proposition that" ‘[a]lthough most defenses cannot be considered on a motion to dismiss, a trial court can properly entertain a ... motion to dismiss that raises collateral estoppel grounds.’ ... Sullivan v. Thorndike, 104 Conn.App. 297, 311, 934 A.2d 827 (2007), cert. denied, 285 Conn . 907, 908, 942 A.2d 415, 416 (2008)." Wilcox v. Webster Ins., Inc., 294 Conn. 206, 223, 982 A.2d 1053 (2009). In Sullivan, however, the court was considering whether the issue of collateral estoppel could be raised by a motion to dismiss filed during a trial under Practice Book § 15-8 and not whether it could be raised in a pretrial motion to dismiss filed pursuant to Practice Book § 10-30 et seq. See Sullivan v. Thorndike, supra, 104 Conn.App. 311-12. Since then, the Appellate Court has broadly interpreted Wilcox v. Webster Ins., Inc., supra, to permit a trial court to consider the defense of collateral estoppel on any motion to dismiss. See Parker v. Commissioner of Correction, 169 Conn.App. 300, 313-14, 149 A.3d 174, cert. denied, 324 Conn . 903, 151 A.3d 1289 (2016). Given our Supreme Court and Appellate Court’s willingness to consider the defense of collateral estoppel when raised in a motion to dismiss, this court will, therefore, consider the defendants’ collateral estoppel arguments.
As previously noted, the CHRO decided that "the THA is not a quasi-public agency ... the complainant herself is not an employee of a quasi-public agency, and the complainant did not disclose information ... to any of the persons or entities listed in § 4-61dd(b)(1). Accordingly, this tribunal lacks jurisdiction over the complainant and it must be, and hereby is, dismissed." Bagnaschi-Maher v. Torrington Housing Authority, supra, Commission on Human Rights & Opportunities Decision No. OPH/WBR-2005-013, p. 3. In the present action, the plaintiff seeks declaratory rulings on: (1) whether the THA is a quasi-governmental agency; (2) whether employees of the THA or other housing authorities are entitled to file a complaint pursuant to § 4-61dd; (3) whether former employees of the THA or other housing authorities are entitled to file a complaint pursuant to § 4-61dd; (4) whether the Attorney General is required to accept and to investigate a complaint pursuant to § 4-61dd when filed by employees or former employees of the THA or other municipal quasi-governmental agencies; (5) whether the Auditors of Public Accounts are required to accept and to investigate a complaint pursuant to § 4-61dd when filed by employees or former employees of the THA or other municipal quasi-governmental agencies; and, (6) whether the plaintiff may refile her whistleblower complaint with the Auditors of Public Accounts under § 4-61dd, assuming it was improperly dismissed or decided by the CHRO in 2006.
The first two, as well as the sixth, declaratory rulings sought by the plaintiff involve issues that were fully and fairly litigated in the 2006 whistleblower complaint and were actually decided by the CHRO, which satisfies the doctrine of collateral estoppel. Parker v. Commissioner of Correction, supra, 169 Conn.App. 313-14. Additionally, the court has already dismissed the present action as to these three issues on the ground that the plaintiff failed to exhaust her administrative remedies. See part III B of this opinion. The remaining three issues were never presented to the CHRO, so plaintiff is not collaterally estopped from raising them here.
D
Standing
The defendants next argue that the plaintiff lacks standing to seek the requested declaratory relief rulings because she is not aggrieved. The plaintiff argues that she has standing to bring the present action because: (1) she is not demanding an investigation of the THA; (2) she is classically aggrieved because she has (a) demonstrated a specific, personal and legal interest in the subject matter of the complaint in that she alleged facts relative to the retaliation she experienced at the hands of the State and THA in the form of termination, arrest, conviction, and repeated detention and subjection to psychiatric evaluations and (b) seeks clarification of the statute in order to determine whether she has recourse to address any of these harms and avoid similar harms in the future; and (3) there is substantial uncertainty as to the legal relations between the parties with respect to the legality of the plaintiff’s future conduct relating to the reporting of public corruption and, therefore, the well-established presumption in favor of jurisdiction should weigh in favor of a finding of aggrievement.
The State takes particular issue with the plaintiff seeking a declaratory ruling on whether the Attorney General and Auditors of Public Accounts are required to accept and investigate a complaint filed pursuant to § 4-61dd and argues that the plaintiff has no constitutionally protected right to a proper investigation and that a private citizen lacks standing to contest the policies of a prosecuting authority. Def.’s Mem. Law Supp. Mot. Dismiss (#103), pp. 78. The State then argues that the plaintiff fails to allege any factual basis to conclude that the plaintiff will suffer future harm, independent of the past harm she suffered by the dismissal of her whistleblower complaint. Id., p. 8. Lastly, the State argues that the plaintiff is not statutorily aggrieved because § 4-61dd does not confer standing upon the plaintiff. That section does not provide a private cause of action for any harm suffered by a private individual from a failure to investigate by the Auditors of Public Accounts or the Attorney General. THA broadly argues that the plaintiff lacks a real interest in the subject matter the present action raises because there is no substantial question in dispute between the plaintiff and THA nor is there any substantial uncertainty of legal relations between the plaintiff and THA. Def.’s Mem. Law. Supp. Mot. Dismiss (#106), pp. 5-7.
"A case that is nonjusticiable must be dismissed for lack of subject matter jurisdiction." (Internal quotation marks omitted.) Janulawicz v. Commissioner of Correction, 310 Conn. 265, 270, 77 A.3d 113 (2013). "Justiciability comprises several related doctrines [including] standing, [which] implicate[s] a court’s subject matter jurisdiction and its competency to adjudicate a particular matter ... Because courts are established to resolve actual controversies, before a claimed controversy is entitled to a resolution on the merits it must be justiciable ... Justiciability requires (1) that there be an actual controversy between or among the parties to the dispute ... (2) that the interests of the parties be adverse ... (3) that the matter in controversy be capable of being adjudicated by judicial power ... and (4) that the determination of the controversy will result in practical relief to the complainant." (Internal quotation marks omitted.) Mendillo v. Tinley, Renehan & Dost, LLP, 329 Conn. 515, 523, 187 A.3d 1154 (2018).
"[S]tanding is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented ... Two broad yet distinct categories of aggrievement exist, classical and statutory ... Classical aggrievement requires a two part showing. First, a party must demonstrate a specific, personal and legal interest in the subject matter of the decision, as opposed to a general interest that all members of the community share ... Second, the party must also show that the [other party] ... has specially and injuriously affected that specific personal or legal interest ... Aggrievement does not demand certainty, only the possibility of an adverse effect on a legally protected interest ... Statutory aggrievement exists by legislative fiat, not by judicial analysis of the particular facts of the case. In other words, in cases of statutory aggrievement, particular legislation grants standing to those who claim injury to an interest protected by that legislation ... Where a party is found to lack standing, the court is ... without subject matter jurisdiction to determine the cause." (Internal quotation marks omitted.) Taylor v. Commissioner of Correction, 137 Conn.App. 135, 138, 47 A.3d 466, cert. denied, 307 Conn. 927, 55 A.3d 569 (2012).
"A declaratory judgment action is not ... a procedural panacea for use on all occasions, but, rather, is limited to solving justiciable controversies ... Invoking [General Statutes] § 52-29 does not create jurisdiction where it would not otherwise exist ... [W]hile the declaratory judgment procedure may not be utilized merely to secure advice on the law ... or to establish abstract principles of law ... or to secure the construction of a statute if the effect of that construction will not affect a plaintiff’s personal rights ... it may be employed in 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, and where all persons having an interest in the subject matter of the complaint are parties to the action or have reasonable notice thereof." (Citations omitted; internal quotation marks omitted.) Mendillo v. Tinley, Renehan & Dost, LLP, supra, 329 Conn. 524-25.
The plaintiff alleges in her complaint that, as a result of her filing the whistleblowing complaint in 2006, she "was terminated from her employment and lost her home due to foreclosure." Compl. ¶17. The plaintiff then alleges that she nevertheless "continued to expose, and to end, the corruption by filing additional complaints with various agencies." Id., ¶18. The plaintiff then alleges that "various city and state officials sanctioned her, discriminated against her due to her mental disabilities, arrested her on numerous misdemeanor charges, using undue physical force" and, also, retaliated against her whistleblowing on at least four separate occasions when she was "subject to compelled detention in correctional or secure hospital settings for months" where she was "compelled to undergo psychological evaluation and forced medical treatment with dangerous drugs." Id., ¶¶19-20.
The plaintiff then asserts that a dispute exists between the parties as to whether § 4-61dd applies to the THA and its employees and former employees such that an investigation is required and whether the plaintiff’s whistleblower complaint was properly dismissed. Id., ¶22. The plaintiff claims that these issues raise bona fide and substantial questions concerning the obligation of the Attorney General and the Auditors of Public Accounts to investigate a whistleblower complaint of an employee or former employee of a housing authority. Further, that if there is such an obligation, what recourse the plaintiff has, if any, to appeal such a decision, which, in essence, relates to the proper roles of the Attorney General and Auditors vis-à-vis to employees of housing authorities. Id., ¶¶23-24, 27. These questions, according to the plaintiff, affect a substantial public interest in that "the financing of housing projects and programs" are "funded by taxpayer dollars" that "may be improperly used if whistleblower complaints by employees, or former employees, are not investigated." She also contends that is a need to have faith in § 4-61dd itself and the process for exposing corrupt practices, generally. Id., ¶¶25-26.
The remaining issues that the plaintiff seeks declaratory rulings on are: (1) whether former employees of the THA or other housing authorities are entitled to file a complaint pursuant to § 4-61dd; (2) whether the Attorney General is required to accept and to investigate a complaint pursuant to § 4-61dd when filed by employees or former employees of the THA or other municipal quasi-governmental agencies; and (3) whether the Auditors of Public Accounts are required to accept and to investigate a complaint pursuant to § 4-61dd when filed by employees or former employees of the THA or other municipal quasi-governmental agencies.
There is a marked disconnect between the facts alleged in the Verified Complaint and the three issues remaining in the present case. While the plaintiff seeks a declaratory ruling on whether former employees of a housing authority are entitled to file a complaint pursuant to § 4-61dd, she does not allege any facts showing that a controversy exists between the parties. Nowhere in the complaint is it alleged that the plaintiff, as a former employee of a housing authority, filed another whistleblower complaint pursuant to § 4-61dd that an agency refused to accept or investigate. All that is alleged is that the plaintiff filed complaints with "various other agencies" after her whistleblower complaint was dismissed for lack of jurisdiction by the CHRO. Nowhere is it alleged in the Verified Complaint that the Attorney General or the Auditors of Public Accounts refused to accept a complaint filed by the plaintiff pursuant to § 4-61dd. Nor is it alleged anywhere in her complaint that the Attorney General or the Auditors of Public Accounts refused to investigate a complaint filed by the plaintiff pursuant to § 4-61dd. Nor could any of these allegations be implied from those facts that have been alleged.
Instead, the plaintiff alleges that she was subjected to retaliation, discrimination, arrest, conviction, incarceration, civil detention, and medical experimentation for attempting to expose allegedly corrupt practices of the THA. Even assuming the truth of these allegations; Conboy v. State, 292 Conn. 651-52; the court fails to see how these alleged injuries are in any way connected to the specific declaratory rulings sought. As such, the plaintiff has failed to allege any specific, personal or harm to a legal interest of hers raised in the present action. Taylor v. Commissioner of Correction, supra, 137 Conn.App. 138. Rather, the plaintiff, in her own words, seeks to determine issues that relate to "the proper roles of the municipal housing authorities, the state Attorney General and the Auditors of Public Accounts, and employees working for those housing authorities." Compl. ¶27. Not only that, but, the plaintiff claims that the resolution of these issues are necessary for people to "have faith in the whistleblower statute, § 4-61dd and the process for exposing corrupt practices." Id., ¶25. While venerable, the plaintiff effectively concedes that she is seeking to vindicate a general interest that all members of the broader community of this state share: ethical governance with clearly defined roles for different public officers, agencies and employees. The plaintiff is not classically aggrieved. Taylor v. Commissioner of Correction, supra .
Nonetheless, the plaintiff raises two arguments specific to her lack of classical aggrievement. First, she argues that she is not demanding an investigation of the THA, which appears to be in response to the case law the State relies upon in its brief. Compare Def.’s Mem. Law Supp. Mot. Dismiss (#103), pp. 7-8 with Pl.’s Obj. Def.’s Mot. Dismiss (#108), p. 11. The plaintiff is correct that she does not pray for the court to order the Attorney General, the Auditors of Public Accounts or any other public body, for that matter, to investigate the alleged corruption of the THA. But this has no bearing on the classical aggrievement analysis because no investigation is sought and nothing pertaining to an investigation being conducted or ended is alleged.
Next, the plaintiff argues that she is classically aggrieved because she has alleged facts relative to the retaliation she experienced at the hands of the defendants in the form of termination, arrest, conviction, and repeated detention and subjection to psychiatric evaluation. The plaintiff also purports to seek clarification of § 4-61dd in order to determine whether she has recourse to address any of these harms and avoid similar harms in the future. While these allegations would, if proven, be clear legal injuries to the plaintiff, the purpose of the present action is wholly disconnected from the alleged facts. Even if the court were to consider the remaining three issues on the merits and issue three declaratory judgments in favor of the plaintiff, no practical relief would result therefrom, which violates one of the central requirements of bringing a declaratory judgment action. Mendillo v. Tinley, Renehan & Dost, LLP, supra, 329 Conn. 524-25. In effect, the plaintiff is seeking an advisory opinion, which the court cannot give. Putman v. Kennedy, 279 Conn. 162, 168, 900 A.2d 1256 (2006) ("[C]ourts are called upon to determine existing controversies, and thus may not be used as a vehicle to obtain advisory judicial opinions on points of law" [internal quotation marks omitted]).
The other type of aggrievement that might give the plaintiff standing is statutory, which exists only when "particular legislation grants standing to those who claim injury to an interest protected by that legislation ." (Emphasis added; internal quotation marks omitted.) Taylor v. Commissioner of Correction, supra, 137 Conn.App. 138. Nowhere in any of § 4-61dd’s various subsections has the General Assembly granted standing to persons claiming an injury or threatened injury who seek to test the proper roles of the municipal housing authorities, their employees, the state Attorney General and the Auditors of Public Accounts. Furthermore, there is no provision in § 4-61dd that grants standing to persons trying to maintain the public’s faith in the effectiveness of this section. Rather, the statute grants employees of specific organizations standing to file complaints with certain public agencies if they are threatened with or subjected to personnel action for filing a complaint pursuant to § 4-61dd(a). See § 4-61dd(e)(2)(A). Accordingly, the plaintiff is not statutorily aggrieved. Taylor v. Commissioner of Correction, supra.
Nevertheless, the plaintiff argues that substantial uncertainty exists as to the legal relations between the parties relative to the reporting of public corruption and, therefore, the well-established presumption in favor of jurisdiction should weigh in favor of a finding of aggrievement. While the complaint must be read in the light most favorable to the plaintiff; Conboy v. State, supra, 292 Conn. 651-52; that does not mean that the court may retain jurisdiction and allow a case to proceed once it has determined it lacks subject matter jurisdiction. Indeed, once the court has determined that it lacks subject matter jurisdiction, it lacks the discretion to do anything but dismiss the action. Janulawicz v. Commissioner of Correction, supra, 310 Conn. 270 ("A case that is nonjusticiable must be dismissed for lack of subject matter jurisdiction" [emphasis added; internal quotation marks omitted]). This argument is without merit.
The court holds that the plaintiff is neither classically nor statutorily aggrieved and, as such, lacks standing. Accordingly, the court dismisses the present action against the defendants as to the issues of whether former housing authority employees may file complaints pursuant to § 4-61dd and whether the Attorney General and the Auditors of Public Accounts are required to accept and investigate complaints filed pursuant to § 4-61dd by present or former housing authority employees or by employees of municipal quasi-governmental agencies, generally.
IV
CONCLUSION
By bringing his action, the plaintiff sought declaratory rulings on six issues. The plaintiff, has failed to exhaust her administrative remedies as to the issues of whether the THA is a quasi-governmental agency, whether employees of the THA or other housing authorities are entitled to file a complaint pursuant to § 4-61dd and whether she could refile her whistleblower complaint. The plaintiff lacks standing as to the other three issues, which include whether former employees of the THA or other housing authorities are entitled to file a complaint under § 4-61dd and whether the Attorney General and Auditors of Public Accounts are required to accept and investigate § 4-61dd complaints when filed by employees or former employees of the THA or other municipal quasi-governmental agencies. Accordingly, the court lacks subject matter jurisdiction over the present action, and as such, it is dismissed as to both the State and the THA. Motions to dismiss #102 and #105 are granted.
Since the court has determined that the six issues presented by the plaintiff are not properly before it, the court need not consider whether § 4-61dd or Article First, § § 9 and 14 of the Connecticut Constitution establish a private right of action.
So ordered.