Opinion
No. CV 10 5015132 S
December 21, 2010
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO DISMISS #103
The plaintiff, Joe Markley, filed the present action against the defendants, the Connecticut department of public utility control (DPUC) and its chairman, Kevin Delgobbo, on October 13, 2010. The amended complaint, filed on November 30, 2010, contains four counts. In counts one and two, the plaintiff alleges that the DPUC and Delgobbo, respectively, acted in an unlawful manner when they extended the collection of the "competitive transition assessment" (CTA) in their financing order dated October 1, 2010. In counts three and four, he alleges that the DPUC and Delgobbo, respectively, have violated the plaintiff's right to equal protection under the state constitution by creating a system in which ratepayers in other geographic locations do not pay the CTA. The plaintiff prays for both injunctive relief and a writ of mandamus.
The following facts, alleged by the plaintiff in the amended complaint, are relevant to the pending motion. The plaintiff is an electric ratepayer in Plantsville, Connecticut who is subject to the CTA. Through a financing order dated October 1, 2010, the DPUC increased the CTA and provided that the proceeds from that assessment would be transferred to the state's general fund. The plaintiff alleges that this new scheme constitutes a tax and that the DPUC is without the legal authority to implement it. Finally, the plaintiff alleges that ratepayers within the city of Groton, the borough of Jewett City, the second and third taxing districts of Norwalk, the city of Norwich and the town of Wallingford will not be required to pay the CTA.
The plaintiff alleges that the CTA was originally created through Public Acts 1998, No. 98-28 in order to assist companies in recovering certain "stranded costs" associated with "the opening of the electricity market" in Connecticut.
The defendants filed a motion to dismiss on November 5, 2010. The motion was accompanied by a supporting memorandum of law. The plaintiff filed an objection on November 30, 2010, and a supplemental memorandum of law on December 10, 2010. Oral argument on this motion was heard on December 20, 2010.
"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." (Internal quotation marks omitted.) Bacon Construction Co. v. Dept. of Public Works, 294 Conn. 695, 706, 987 A.2d 348 (2010). "In general, a motion to dismiss is the proper procedural vehicle to raise a claim that the court lacks subject matter jurisdiction over the action." Bellman v. West Hartford, 96 Conn.App. 387, 392, 900 A.2d 82 (2006).
"Subject matter jurisdiction [implicates] 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 . . . The objection of want of jurisdiction may be made at any time . . . [a]nd the court or tribunal may act on its own motion, and should do so when the lack of jurisdiction is called to its attention . . . The requirement of subject matter jurisdiction cannot be waived by any party and can be raised at any stage in the proceedings." (Internal quotation marks omitted.) Burton v. Commissioner of Environmental Protection, 291 Conn. 789, 802, 970 A.2d 640 (2009).
"Under [the 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." (Internal quotation marks omitted.) Garcia v. Hartford, 292 Conn. 334, 339, 972 A.2d 706 (2009). Because the failure to exhaust implicates subject matter jurisdiction, the issue may be raised by this court on its own initiative. Burton v. Commissioner of Environmental Protection, supra, 291 Conn. 802.
"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." General Statutes § 4-183(a). "Section 4-183(a) sets forth the jurisdictional requirement that appellants must be aggrieved by a final decision of the agency to take an administrative appeal." (Internal quotation marks omitted.) Southern New England Telephone Co. v. Department of Public Utility, 64 Conn.App. 134, 140-41, 779 A.2d 817 (2001). "Final decision means (A) the agency determination in a contested case, (B) a declaratory ruling issued by an agency pursuant to section 4-176 or (C) an agency decision made after reconsideration. The term does not include a preliminary or intermediate ruling or order of an agency, or a ruling of an agency granting or denying a petition for reconsideration." General Statutes § 4-166(3).
"Any person may petition an agency, or an agency may on its own motion initiate a proceeding, for a declaratory ruling as to the validity of any regulation, or the applicability to specified circumstances of a provision of the general statutes, a regulation, or a final decision on a matter within the jurisdiction of the agency." General Statutes § 4-176(a).
The extraordinary nature of the remedies sought by the plaintiff is inapposite to this requirement. Housing Authority v. Papandrea, 222 Conn. 414, 424, 610 A.2d 637 (1992) ("[W]e . . . reject the plaintiff's claim that its request for injunctive relief obviated the requirement that it exhaust the available administrative remedies before filing an action in the Superior Court"); Juliano v. Farrell, 196 Conn. 283, 286, 492 A.2d 187 (1985) ("[T]he failure to exhaust an available administrative remedy is a proper ground for denying mandamus").
Even if the plaintiff had exhausted the available administrative proceedings it is unclear that he would be entitled to an injunction. To prevail on an application for a permanent injunction, the movant must show (1) lack of an adequate remedy at law; (2) success on the merits; (3) irreparable injury; and (4) that a balancing of the equities favors granting the injunction. Waterbury Teachers Assn. v. Freedom of Information Commission, 230 Conn. 441, 446, 645 A.2d 978 (1994). In this case, the issuance of a declaratory judgment would afford adequate relief. See Pamela B. v. Ment, 244 Conn. 296, 324, A.2d 1089 (1998) ("[D]eclaratory relief controls state activity no less completely than injunctive relief. The issuance of a declaratory judgment in this action would have the practical effect, even in the absence of a request for injunctive relief, of prompting the defendants to comply with the statute"); Rapoport v. Cox, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 09 4016796 (December 29, 2009, Brazzel-Massaro, J.) ("this court cannot grant injunctive relief that will be more appropriately and completely resolved through the declaratory judgment action").
The plaintiff would have a similar difficulty showing that he was entitled to a writ of mandamus. "Mandamus is an extraordinary remedy, available in limited circumstances for limited purposes . . . It is fundamental that the issuance of the writ rests in the discretion of the court, not an arbitrary discretion exercised as a result of caprice but a sound discretion exercised in accordance with recognized principles of law . . . That discretion will be exercised in favor of issuing the writ only where the plaintiff has a clear legal right to have done that which he seeks . . . The writ is proper only when (1) the law imposes on the party against whom the writ would run a duty the performance of which is mandatory and not discretionary; (2) the party applying for the writ has a clear legal right to have the duty performed; and (3) there is no other specific adequate remedy." (Citation omitted; internal quotation marks omitted.) Cammarota v. Planning Zoning Commission, 97 Conn.App. 783, 788-89, 906 A.2d 741, cert. denied, 280 Conn. 941, 912 A.2d 475 (2006). The gravamen of the plaintiff's complaint is not that the defendants failed to perform some ministerial duty but rather that the defendants performed their duties incorrectly. Indeed, the only ministerial duties imposed on the defendants relating to the CTA were to hold an administrative hearing and issue a financing order. Public Acts 2010, No. 10-179, § 126. There is no dispute that the defendants have completed these tasks. Moreover, the plaintiff has failed to meet the third requirement; both declaratory relief and money damages would provide an adequate remedy in the present case. Consequently, a writ of mandamus is, likewise, unavailable to the plaintiff.
The plaintiff argues that the DPUC acted in excess of its statutory authority and has violated the equal protection clause of the Connecticut constitution. The exhaustion doctrine requires that the DPUC have an opportunity to address the plaintiff's contentions before this court considers the relief sought. "The doctrine of exhaustion is grounded in a policy of fostering an orderly process of administrative adjudication and judicial review in which a reviewing court will have the benefit of the agency's findings and conclusions . . . The doctrine of exhaustion furthers the salutary goals of relieving the courts of the burden of deciding questions entrusted to an agency . . . in advance of possible judicial review." Concerned Citizens of Sterling v. Sterling, 204 Conn. 551, 557, 529 A.2d 666 (1987). The plaintiff does not allege that he has exhausted these procedures. Indeed, he has admitted at oral argument that he has not yet obtained the final decision of the DPUC pursuant to General Statutes § 4-176(a). Consequently, the plaintiff has failed to exhaust and the case must be dismissed for lack of subject matter jurisdiction unless an applicable exception is found.
The plaintiff indicated at oral argument that he believes further proceedings with the DPUC will be unfruitful; indeed, merely a "matter of theater." This implicates the futility exception to the exhaustion doctrine. The plaintiff bases this conclusion upon certain comments made by Delgobbo at a public hearing which, according to the plaintiff, would tend to indicate that the agency would be unable or unlikely to provide the relief sought. These statements are not contained within the record of this case and therefore need not be considered by this court. Moreover, even if the court were willing to look beyond this absence, there is no reason to believe that such statements would, if made, constitute the final position of the agency.
"A remedy is futile or inadequate if the decision maker is without authority to grant the requested relief . . . It is futile to seek a remedy only when such action could not result in a favorable decision and invariably would result in further judicial proceedings." (Citations omitted; internal quotation marks omitted.) Garcia v. Hartford, 292 Conn. 334, 339-40, 972 A.2d 706 (2009).
It is also important to note that a formal proceeding pursuant to § 4-176 would produce a record containing the agency's conclusions on innumerable issues relevant in the present case. The agency would likely identify the scope of its authority, clarify its understanding of the statutory duties imposed upon it by Public Acts 2010, No. 10-179 § 126 and, perhaps most importantly, provide its rationale for the disproportionate implementation of the assessment. This court is entitled to the benefit of that record. Concerned Citizens of Sterling v. Sterling, supra, 204 Conn. 551. Consequently, the futility exception does not apply and the plaintiff's claims must be dismissed due to the lack of exhaustion.
Even if the plaintiff had exhausted the available administrative proceedings this court might also be deprived of subject matter jurisdiction under the doctrine of sovereign immunity. "[T]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss." (Internal quotation marks omitted.) Bacon Construction Co. v. Dept. of Public Works, supra, 294 Conn. 706. "The source of the sovereign power of the state is now the constitution which created it, and it is now recognized that, as Mr. Justice Holmes wrote: A sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends." (Internal quotation marks omitted.) Cox v. Aiken, 278 Conn. 204, 211-12, 897 A.2d 71 (2006).
"Exceptions to [the doctrine of sovereign immunity] are few and narrowly construed under our jurisprudence . . . There are [three] exceptions: (1) when the legislature, either expressly or by force of a necessary implication, statutorily waives the state's sovereign immunity . . . (2) when an action seeks declaratory or injunctive relief on the basis of a substantial claim that the state or one of its officers has violated the plaintiff's constitutional rights . . . and (3) when an action seeks declaratory or injunctive relief on the basis of a substantial allegation of wrongful conduct to promote an illegal purpose in excess of the officer's statutory authority." (Citations omitted; internal quotation marks omitted.) Columbia Air Services, Inc. v. Dept. of Transportation, 293 Conn. 342, 349, 977 A.2d 636 (2009).
"To sustain such a claim, the allegations of the complaint and the facts in issue must clearly demonstrate an incursion upon constitutionally protected interests." (Internal quotation marks omitted.) Columbia Air Services, Inc. v. Dept. of Transportation, 293 Conn. 342, 356, 977 A.2d 636 (2009).
"A claim under this exception must do more than allege that the defendants' conduct was in excess of their statutory authority; it must allege facts that reasonably support those allegations." Columbia Air Services, Inc. v. Dept. of Transportation, supra, 293 Conn. 356.
While the presence of the latter two exceptions might well render the state's shield of sovereign immunity inoperative in many cases for declaratory and injunctive relief, the application of these exceptions is generally premised upon the ability of this court to forge such remedies in a manner which minimize interference with governmental functions. Pamela B. v. Ment, 244 Conn. 296, 328, A.2d 1089 (1998) ("[T]he state is subject to suit without consent . . . in a suit for injunctive relief when the action does not defeat the purpose of the doctrine of sovereign immunity by undue interference with governmental functions." [Emphasis added.]); Duguay v. Hopkins, 191 Conn. 222, 227 n. 4, 464 A.2d 45 (1983). Given the particularly invasive nature of injunctions which prospectively prohibit the state from collecting revenue; see Hartford v. Faith Center, Inc., 196 Conn. 487, 493 A.2d 883 (1985); L.G. DeFelice Son, Inc. v. Wethersfield, 167 Conn. 509, 512-13, 356 A.2d 144 (1975); Arnold v. Middletown, 39 Conn. 401, 405-06 (1872); and that the plaintiff has expressly stated that he is not seeking declaratory relief, it is unclear that this prerequisite could be met.
In the plaintiff's supplemental memorandum states that he is not seeking anything "at the current time that would require a declaratory judgment."
However, even if we were to assume that the second and third exceptions were available in a lawsuit seeking such extraordinary remedies, it is questionable whether the plaintiff has alleged sufficient facts to warrant the application of these exceptions in the present case. While the plaintiff has alleged that ratepayers in some towns must pay the CTA while others need not, he has not alleged that the state's actions were motivated by any impermissible consideration. Moreover, while the plaintiff has alleged that the DPUC acted in a manner which exceeded its statutory authority, the legislature has chosen to enact a statute which specifically mandates that the DPUC continue the implementation of this assessment. P.A. 2010, No. 10-179 § 126. Consequently, it is unlikely that the plaintiff could establish the applicability of these exceptions in the present case.
"A violation of equal protection by selective [treatment] arises if: (1) the person, compared with others similarly situated, was selectively treated; and (2) . . . such selective treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person." Columbia Air Services, Inc. v. Department of Transportation, supra, 293 Conn. 362. "In the absence of any allegation as to an impermissible basis for the alleged differing treatment, we must conclude that the plaintiff's claim that the defendants deprived it of its constitutional right to equal protection of the laws fails to meet the requirements for the second exception to the doctrine of sovereign immunity." Id., 363. Although offered in the context of the fourteenth amendment to the federal constitution, this analysis is also applicable to equal protection claims made pursuant to our state constitution. Abdullah v. Commissioner of Correction, 123 Conn.App. 197, 1 A.3d 1102 (2010) ("It is well settled that, as a general matter, this state's constitutional equal protection jurisprudence follows that of the federal constitution.").
Finally, the letter of the office of the attorney general to the DPUC dated July 9, 2010, is irrelevant. Although this court would give due consideration to a formal opinion by the attorney general relating to the issues of this case, this letter merely states that the attorney general has chosen not to respond to the agency's request for written comments. This letter contains no legal conclusions relating to the authority of the agency, the constitutionality of the DPUC's finance order or the validity of the CTA as currently imposed.
For the reasons stated above, the motion to dismiss is granted on the ground that this court lacks subject matter jurisdiction.