Opinion
HHDCV176082066S
04-27-2018
STATE of Connecticut v. Joanne AVOLETTA et al.
UNPUBLISHED OPINION
OPINION
Robaina, J.
This case involves a long-standing dispute initially brought by the defendants Joanne Avoletta, Peter Avoletta, and Matthew Avoletta against the plaintiff, the State of Connecticut (state), concerning the state’s alleged failure to provide Peter and Matthew with a free public education in a safe setting. Avoletta v. State, 152 Conn.App. 177, 179, 98 A.3d 839, cert. denied, 314 Conn. 944, 102 A.3d 1116 (2014). The defendants filed claims with the Claims Commissioner (commissioner) in 2007, alleging that the defendants’ public school was not properly maintained and incurred water leaks, bacteria, mold, dampness, and poor indoor air quality. Id., 179-80. The defendants alleged that Peter and Matthew suffered physical ailments due to the poor conditions of the public school and, as to Matthew in particular, attendance at the public school was medically contraindicated. Id., 180. Accordingly, the defendants enrolled Peter and Matthew in private schools at their own expense, and sought reimbursement from the state for the tuition and costs of their private education. Id.
Peter attended private school from August 2004 through June 2006. Matthew attended private school from August 2003 through June 2010. Id.
The commissioner dismissed the defendants’ claims as untimely because they were not brought within the one-year statute of limitations set forth in General Statutes § 4-148(a), and the commissioner, therefore, lacked subject matter jurisdiction to review the claims. See Avoletta v. State, supra, 152 Conn.App. 180. The defendants thereafter sought legislative review of the commissioner’s decision pursuant to either General Statutes § 4-158 or § 4-148(b). Id., 180-81. The legislature approved Joint Resolution No. 11-34 (joint resolution), vacating the commissioner’s decision and authorizing the defendants to sue the state. Id. 181. The defendants then instituted their action in the Superior Court. Id.
General Statutes § 4-148(a) provides in relevant part: " Except as provided in subsection (b) of this section, no claim shall be presented under this chapter but within one year after it accrues. Claims for injury to person or damage to property shall be deemed to accrue on the date when the damage or injury is sustained or discovered or in the exercise of reasonable care should have been discovered, provided no claim shall be presented more than three years from the date of the act or event complained of."
Following the state’s motion to dismiss, the Superior Court held that the state " was entitled to sovereign immunity and granted its motion to dismiss for lack of subject matter jurisdiction." Id., 182. The court, Sheridan, J., analyzed the constitutionality of the joint resolution, stating that the court " must first determine if the matter was untimely. If the matter was not untimely, the plaintiffs will succeed in defeating the motion to dismiss because they will not have been granted a right unavailable to any other person. If the matter was untimely, the court must then determine whether there was any public purpose for the legislature’s action. If there was not, the resolution will be ruled unconstitutional as violating article first, § 1 [of the Connecticut constitution]." Avoletta v. State, Superior Court, judicial district of Hartford, Docket No. CV-12-5036221-S (May 6, 2013, Sheridan, J.). The Superior Court then held that the defendants’ claims were untimely because the defendants " were clearly aware of the school conditions far more than a year before the May 2, 2007 filing with the claims commissioner." Id. The court was not persuaded by the defendants’ argument that the continuous course of conduct doctrine tolled the statute of limitations, holding that the doctrine " has no application after the plaintiff has discovered the harm." (Internal quotation marks omitted.) Id. Further, the court found that the legislature had failed to articulate a public purpose for allowing the defendants to pursue their untimely claims, and the court could find no such purpose in the legislative history. See id. Accordingly, the court held that allowing the plaintiffs to file suit directly in this matter, when this court has determined that their action was untimely provides them a right unavailable to other parties. While the legislature need not enact a special act when vacating the claims commissioner’s dismissal of the matter, allowing a plaintiff with an untimely claim to circumvent § 4-148(b) without any explanation or public purpose, constitutes a public emolument when the action is untimely." Id.
The defendants appealed from the Superior Court’s decision, arguing in part that " the court applied the wrong standard of review because it disregarded certain factual allegations in the complaint and certain testimony that they gave to the legislature when the court determined that their action was untimely." Avoletta v. State, supra, 152 Conn.App. 190. The Appellate Court disagreed, noting, as the Superior Court did, that the defendants had discovered actionable harm when they first removed Peter and Matthew from the public school system in 2003 and 2004. See id., 192. Relying on its analysis in Morneau v. State, 150 Conn.App. 237, 260-62, 90 A.3d 1003, cert. denied, 312 Conn. 926, 95 A.3d 522 (2014), the court affirmed that the joint resolution was an unconstitutional public emolument. Avoletta v. State, supra, 195.
" [A]lthough a special act passed under § 4-148(b) will undoubtedly confer a direct benefit upon a particular claimant, we have found a public purpose if it remedies an injustice done to that individual for which the state itself bears responsibility ... In such circumstances, the benefit conferred upon a private party by the legislature may be viewed as incidental to the overarching public interest that is served in remedying an injustice caused by the state ...
The defendants thereafter returned to the commissioner, arguing that they were harmed by the legislature’s failure to articulate a public purpose in the joint resolution. The state moved to dismiss these claims on a variety of grounds, including collateral estoppel, res judicata, and legislative immunity. The commissioner dismissed the defendants’ claims. The defendants again appealed to the General Assembly, which passed Special Act No. 17-4 (special act). This special act authorizes the defendants to present their claims to the commissioner, and the commissioner has since issued a scheduling order requiring the parties to complete discovery, file dispositive motions, and participate in a hearing on the merits of the defendants’ claims.
Special Act 17-4 provides: " (a) Notwithstanding the failure to file a proper notice of a claim against the state with the clerk of the Office of the Claims Commissioner, within the time limitations specified by subsection (a) of section 4-148 of the general statutes, Joanne Avoletta, Peter Avoletta and Matthew Avoletta are authorized pursuant to the provisions of subsection (b) of section 4-148 of the general statutes to present their respective claims against the state to the Claims Commissioner. The General Assembly finds that there is a public purpose served by encouraging accountable state government through the full adjudication of cases involving persons who claim to have been injured by the conduct of state actors. The General Assembly further finds it just and equitable that the time limitations provided for in subsection (a) of section 4-148 of the general statutes be tolled in a case such as this, involving claimants who initially filed notice of their claims against the state with the Claims Commissioner on May 2, 2007, for injuries that are alleged to have accrued on September 15, 2006, which allegations, if viewed in a light most favorable to the claimants, provide notice to the state of their claims within the statute of limitations for injuries to their person. The General Assembly deems such authorization to be just and equitable and finds that such authorization is supported by compelling equitable circumstances and would serve a public purpose. Such claims shall be presented to the Claims Commissioner not later than one year after the effective date of this section.
The state has now filed a complaint for declaratory relief with this court, asking for a determination that the special act is an unconstitutional public emolument that violates Article First, § 1 of the Connecticut constitution. Specifically, the state alleges that the issue of whether a legitimate public purpose exists for permitting the defendants to proceed on their claims was presented and litigated during the Superior and Appellate Court proceedings. Moreover, the state alleges that the act’s purported public purpose (" encouraging accountable state government through the full adjudication of cases involving persons who claim to have been injured by state actors" ) is not a legitimate public purpose. Instead, the state alleges that because there are no facts or findings in the act demonstrating that the state caused the defendants to violate the one year statute of limitations, there can be no legitimate public purpose sufficient to overcome the public emoluments clause.
Presently before the court is the defendants’ motion to dismiss on the grounds that the court lacks both personal jurisdiction and subject matter jurisdiction.
DISCUSSION
I
Motion to Dismiss
" [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.) Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013). " A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) MacDermid, Inc. v. Leonetti, 310 Conn. 616, 626, 79 A.3d 60 (2013). " A court deciding a motion to dismiss must determine not the merits of the claim or even its legal sufficiency, but rather, whether the claim is one that the court has jurisdiction to hear and decide." (Internal quotation marks omitted.) Hinde v. Specialized Education of Connecticut, Inc., 147 Conn.App. 730, 740-41, 84 A.3d 895 (2014). " In undertaking this review, we are mindful of the well established notion that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 650, 974 A.2d 669, 676 (2009).
II
Personal Jurisdiction
A
Insufficiency of Process
The defendants argue that the court lacks personal jurisdiction for the state’s failure to follow statutory requirements in serving process. Specifically, the defendants argue that process was not directed to a state marshal, constable, other proper officer authorized by statute, or indifferent person; instead, it was mailed and emailed by opposing counsel. Further, the defendants maintain that they did not waive the right to challenge the court’s exercise of personal jurisdiction.
In its objection, the state argues that it was under the impression that defendants’ counsel had agreed to accept service of process on behalf of her clients. In addition, the state filed a motion to amend the summons substituting the defendants’ individual addresses instead of their attorney’s address within the allowable time for doing so. Thus, the state argues that the defendants were then properly and timely served with the amended summons.
" [A]n action commenced by ... improper service must be dismissed." (Internal quotation marks omitted.) Matthews v. SBA, Inc., 149 Conn.App. 513, 530, 89 A.3d 938, cert. denied, 312 Conn. 917, 94 A.3d 642 (2014). " [W]hen a particular method of serving process is set forth by statute, that method must be followed ... Unless service of process is made as the statute prescribes, the court to which it is returnable does not acquire jurisdiction ... The jurisdiction that is found lacking ... is jurisdiction over the person ..." (Internal quotation marks omitted.) Morgan v. Hartford Hospital, 301 Conn. 388, 400, 21 A.3d 451 (2011). " Failure to comply with the statutory requirements of service renders a complaint subject to a motion to dismiss on the ground of lack of personal jurisdiction ... Facts showing the service of process in time, form, and manner sufficient to satisfy the requirements of mandatory statutes in that regard are essential to jurisdiction over the person." (Internal quotation marks omitted.) Id., 401.
General Statutes § 52-72(a) provides in relevant part: " [A]ny court shall allow a proper amendment to civil process which is for any reason defective." Further, § 52-72(b) provides in relevant part: " Such amended process shall be served in the same manner as other civil process ..." In the present case, the court, Sheridan, J., granted the state’s motion to amend the summons on December 4, 2017. Thus, the state has properly served the amended process in accordance with General Statutes § 52-45a et seq. Specifically, a state marshal served Joanne Avoletta in-hand and Matthew Avoletta by abode service on October 30, 2017, and process was timely returned to court on November 6, 2017. See Entry No. 108. Further, Peter Avoletta was timely served in California, and also pursuant to § 52-59b. See Entry No. 107. The defendants’ motion to dismiss for lack of personal jurisdiction is, therefore, denied.
III
Subject Matter Jurisdiction
A
Lack of Finality in the Administrative Proceeding
The defendants argue that the court lacks subject matter jurisdiction due to the lack of finality in the underlying administrative proceeding. Specifically, the defendants argue that the state had a full opportunity to contest the commissioner’s jurisdiction in the underlying administrative proceeding, but that the state circumvented the administrative proceeding to make this argument in the Superior Court.
The defendants cite to two cases in support of their argument, neither of which affect the court’s subject matter jurisdiction in this case. Gennarini Construction Co. v. Messina Painting & Decorating Co., 15 Conn.App. 504, 509, 545 A.2d 579 (1988) did not raise any issues regarding subject matter jurisdiction; rather, the case emphasizes the importance of final judgments in the context of res judicata. The defendants’ second cited case, Investment Associates v. Summit Associates, Inc., 309 Conn. 840, 846-47, 74 A.3d 1192 (2013) involved a jurisdictional attack on a motion to revive an action to enforce a judgment. Here, however, the defendants concede that there has been no final judgment in the current administrative proceeding; Defs.’ Mem. 5; accordingly, there is no final judgment for the state to collaterally attack.
The procedural history in Gennarini is lengthy and complex, but ultimately concerns the defendant’s collateral attack on a rejection of its request to supplement an arbitrator’s award with interest and attorneys fees. See id., 508-09. " [A collateral] attack on a prior judgment will prevail only if it can be shown that the judgment is void, as for want of jurisdiction; ‘mere error’ will not suffice." Id., 512. The defendant in Gennarini had not, however, " challenged the competency of the original trial court" that had denied its request, and only claimed judicial error on appeal. Id. Thus, the relevant issue " had been fully presented to and decided by [the judge], and thus, the defendant was barred under the doctrine of res judicata from raising this claim once again." Id., 509.
Investment Associates v. Summit Associates, Inc. involved an action to recover on a promissory note guaranteed by the defendant. Id., 844. The defendant " asserted various defenses to the merits but no jurisdictional challenges." Id. The trial court found for the plaintiff. Id. On appeal from the plaintiff’s motion to revive an action to enforce the judgment, the defendant, " for the first time, challenged the plaintiff’s standing to invoke the court’s jurisdiction ..." Id., 846-47. " [T]he Appellate Court concluded that the interest in finality of judgments outweighed the concerns that the defendant had raised regarding the validity of the judgment ... The court further concluded that, because the practical effect of the defendant’s challenge to the motion to revive was an attack on the [trial court’s] judgment, the defendant could not challenge the trial court’s subject matter jurisdiction over either the original judgment or the motion to revive." (Citation omitted.) Id., 847. Accordingly, the court affirmed the trial court’s holding that the defendant " had a full opportunity originally to contest the jurisdiction of the adjudicatory tribunal." (Internal quotation marks omitted.) Id., 855.
Moreover, as to the defendants’ argument that the state " had a full opportunity to contest the jurisdiction" of the commissioner, the court notes that the state has consistently challenged the commissioner’s jurisdiction at all stages of this case. In 2007, when the defendants first presented their claims to the commissioner, the state moved for summary judgment and the commissioner dismissed the defendants’ claims for lack of jurisdiction. Subsequently, when the defendants again presented their claims to the commissioner, the state moved to dismiss on the grounds of collateral estoppel, res judicata, and legislative immunity. Again, the commissioner dismissed the defendants’ claims. The special act effectively remands the defendants’ claims back to the commissioner. Requiring the state to once again move to dismiss the underlying administrative action for lack of jurisdiction is futile, particularly when the special act purports to grant jurisdiction to the commissioner, and the commissioner is without the authority to decide the constitutionality of the act. See St. Paul Travelers Cos. v. Kuehl (Kuehl ), 299 Conn. 800, 814, 12 A.3d 852 (2011).
Instead, the state is " not required to proceed to the merits before the commissioner prior to bringing the present action." Id., 812. Accordingly, the defendants’ motion to dismiss for lack of finality in the administrative proceeding is denied.
B
Failure to Join the Commissioner
The defendants next argue that the court lacks subject matter jurisdiction because the Office of the Claims Commissioner is not a party to the action. Specifically, the defendants argue that the commissioner is an interested party and that it is statutorily required that the office " be made a party to the action if a provision of the general statutes, or its threatened application, interferes or impairs the legal rights of the plaintiff, or threatens to do so," citing General Statutes § 4-175. Accordingly, the defendants maintain that, because the commissioner is not a party to this action, the court lacks subject matter jurisdiction.
General Statutes § 4-175(a) provides in relevant part: " If a provision of the general statutes, a regulation or a final decision, or its threatened application, interferes with or impairs, or threatens to interfere with or impair, the legal rights or privileges of the plaintiff 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."
" [A] motion to dismiss is not the proper method to raise the issue of the nonjoinder of a party. Instead, the exclusive remedy for nonjoinder of indispensable parties is by way of a motion to strike." Levine v. Police Commission, 28 Conn.App. 344, 351, 612 A.2d 787, cert. denied, 223 Conn. 923, 614 A.2d 823 (1992). " Ordinarily, an objection predicated on a claim of nonjoinder of a necessary or indispensable party does not go to the jurisdiction of the court ... Except as provided in [Practice Book § § ] 10-44 and 11-3 no action shall be defeated by the nonjoinder ... of parties ... Practice Book § 9-19. Additionally, [a]s set forth in Section 10-39, the exclusive remedy for nonjoinder of parties is by motion to strike. Practice Book § 11-3." (Citations omitted; internal quotation marks omitted.) Yellow Cab Co. of New London & Groton, Inc. v. Dept. of Transportation, 127 Conn.App. 170, 176, 13 A.3d 690, cert. denied, 301 Conn. 908, 19 A.3d 178 (2011). See also General Statutes § 52-108 (" [a]n action shall not be defeated by the nonjoinder or misjoinder of parties" ).
Nevertheless, " [t]he nonjoinder of a party will generally implicate the court’s subject matter jurisdiction and therefore require dismissal ... if a statute mandates the naming and serving of the party." (Internal quotation marks omitted.) Fountain Pointe, LC v. Calpitano, 144 Conn.App. 624, 649, 76 A.3d 636, cert. denied, 310 Conn. 928, 78 A.3d 147 (2013). In contrast, " [if the proposed party] is an indispensable party, [but] it is not required by statute to be made a party, the court’s subject matter jurisdiction is not implicated and dismissal is not required." (Internal quotation marks omitted.) Sullivan v. Thorndike, 104 Conn.App. 297, 301, 934 A.2d 827 (2007), cert. denied, 285 Conn. 907, 908, 942 A.2d 415, 416 (2008).
The defendants have provided no authority that requires a party to file a declaratory ruling pursuant to General Statutes § § 4-175 and 4-176 when challenging the constitutionality of a special act passed by the General Assembly. Rather, the issue is resolved quite simply upon a close reading of the text and definitions set forth in Chapter 54 of the Uniform Administrative Procedure Act (UAPA). Section 4-176(a) provides in relevant part: " Any person may petition an agency ... 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 does not take any action on the petition for declaratory ruling, the petitioner may seek a declaratory judgment in the Superior Court, provided that the agency is made a party to the action. See General Statutes § 4-175(a). The definition of an agency, however, expressly " does not include either house or any committee of the General Assembly." General Statutes § 4-166(1). Because a regulation means " each agency statement of general applicability" ; (emphasis added) General Statutes § 4-166(16); the General Assembly’s special act is not a regulation within the UAPA. Further, the state is not challenging the " applicability ... of a provision of the general statutes ..." See General Statutes § 4-176. Instead, a special act is " [a] law that has a limited application ... not incorporated into the Connecticut General Statutes." (Internal quotation marks omitted.) Avoletta v. State, supra, Superior Court, Docket No. CV-12-5036221-S. Accordingly, the court finds that the state was not required to file its declaratory ruling pursuant to General Statutes § § 4-175 and 4-176 or name the commissioner as a party to the action, but only needed to give the commissioner notice of the action pursuant to Practice Book § 17-56(b). See St. Paul Travelers Cos. v. Kuehl, Superior Court, judicial district of Hartford, Docket No. CV-06-402559-S (February 19, 2009, Wagner, J.T.R.). Because no statute mandates the naming and serving of the commissioner, such nonjoinder does not implicate the court’s subject matter jurisdiction. See Fountain Pointe, LLC v. Calpitano, supra, 144 Conn.App. 649. Accordingly, the defendants’ motion to dismiss for failure to join the commissioner as an interested party is denied.
Although the defendants cite to Tucker v. Maher, 192 Conn. 460, 461-62, 472 A.2d 1261 (1984) in support of their argument, the case involved an action by the commissioner of income maintenance, not the General Assembly.
The Superior Court’s earlier decision in Kuehl is instructive on this point. Kuehl involved a petition for a declaratory ruling on the constitutionality of a public act. See id. The declaratory ruling was filed pursuant to Practice Book § 17-55, and neither the General Assembly nor the commissioner were parties to the action. Id. The court noted that " all persons having an interest in the subject matter of the complaint are parties to the action or have reasonable notice thereof" and that " [t]his declaratory judgment action meets the requirements of our practice book." Id. Accordingly, the court denied the motion to dismiss. Id.
C
Standing
The defendants argue that the court lacks subject matter jurisdiction because the plaintiff has not established standing to intervene. The defendants’ argument here is twofold: first, the defendants argue that " [i]dentifying the Plaintiff only as the ‘State of Connecticut’ is too vague for purposes of standing." Specifically, the defendants argue that the authority of the attorney general to represent the state is limited, and that the state can only act through its branches and through state actors. Second, the defendants argue that the state lacks standing because the attorney general has not articulated how the state has been aggrieved. Specifically, the defendants argue that the state has no immunity from liability or suit regarding claims presented to the commissioner because, pursuant to General Statutes § § 4-141 through 4-165, the state is required to litigate its interest on the merits before the commissioner, and such litigation does not result in a loss of immunity to the state.
In contrast, the state argues that the attorney general has the authority to supervise all legal matters in which the state is an interested party. Further, the state argues that it is being deprived of its right to immunity from suit and from having to defend against stale claims.
" [J]usticiability comprises several related doctrines, namely, standing, ripeness, mootness and the political question doctrine, that implicate a court’s subject matter jurisdiction and its competency to adjudicate a particular matter ... 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). " [B]ecause the issue of standing implicates subject matter jurisdiction, it may be a proper basis for granting a motion to dismiss." Electrical Contractors, Inc. v. Dept. of Education, 303 Conn. 402, 413, 35 A.3d 188 (2012). " If ... the plaintiff’s standing does not adequately appear from all materials of record, the complaint must be dismissed." (Footnote omitted; internal quotation marks omitted.) Burton v. Dominion Nuclear Connecticut, Inc., 300 Conn. 542, 550, 23 A.3d 1176 (2011).
" The purpose of a declaratory judgment action, as authorized by ... § 52-29 and Practice Book § [17-55], is to secure an adjudication of rights [when] there is a substantial question in dispute or a substantial uncertainty of legal relations between the parties ... Subdivisions (1) and (2) of Practice Book § 17-55 respectively require that the plaintiff in a declaratory judgment action have an interest, legal or equitable, by reason of danger of loss or of uncertainty as to the party’s rights or other jural relations and that there be an actual bona fide and substantial question or issue in dispute or substantial uncertainty of legal relations which requires settlement between the parties ..." (Internal quotation marks omitted.) Travelers Casualty & Surety Co. of America v. Netherlands Ins. Co., 312 Conn. 714, 726, 95 A.3d 1031 (2014).
" [A]n action for a declaratory judgment, valuable as it has become in modern practice, is not a procedural panacea for use on all occasions ... A party pursuing declaratory relief must therefore demonstrate, as in ordinary actions, a justiciable right in the controversy sought to be resolved, that is, contract, property or personal rights ... as such will be affected by the [court’s] decision ... A party without a justiciable right in the matter sought to be adjudicated lacks standing to raise the matter in a declaratory judgment action." (Internal quotation marks omitted.) Id., 728. " [Because] [s]tanding requires no more than a colorable claim of injury ... a [party] ordinarily establishes ... standing by allegations of injury [that he or she has suffered or is likely to suffer]. Similarly, standing exists to attempt to vindicate arguably protected interests." (Internal quotation marks omitted.) Id.
General Statutes § 3-125 provides in relevant part: " The Attorney General shall have general supervision over all legal matters in which the state is an interested party ... He shall appear for the state ... in all suits and other civil proceedings ... in which the state is a party or is interested ... and all such suits shall be conducted by him or under his direction." Moreover, General Statutes § 4-149(a) specifically authorizes the attorney general to represent the state and " [protect] the state’s interest" in claims before the commissioner. In the present case, the defendants concede that the state is " a party to an administrative hearing." The court also takes judicial notice of the fact that the attorney general’s office filed an appearance on behalf of the state in 2012, when the Avolettas first brought their claims against the state to the Superior Court. See Avoletta v. State, supra, Superior Court, Docket No. CV-12-5036221-S. Accordingly, the defendants’ argument that the State of Connecticut " is too vague for purposes of standing" is denied.
" Judicial notice ... meets the objective of establishing facts to which the offer of evidence would normally be directed." State v. Tomanelli, 153 Conn. 365, 368, 216 A.2d 625 (1966). " [T]he trial court may take judicial notice of the file in another case, whether or not the other case is between the same parties." (Internal quotation marks omitted.) Wasson v. Wasson, 91 Conn.App. 149, 157, 881 A.2d 356, cert. denied, 276 Conn. 932, 890 A.2d 574 (2005).
The defendants’ corollary argument is that the state has not established an injury because, pursuant to General Statutes § § 4-141 through 4-165, litigation before the commissioner does not result in a loss of immunity to the state. " [W]e have long recognized the validity of the common-law principle that the state cannot be sued without its consent ..." Miller v. Egan, 265 Conn. 301, 313, 828 A.2d 549 (2003). " 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 ... The doctrine of sovereign immunity operates as a strong presumption in favor of the state’s immunity from liability or suit." (Internal quotation marks omitted.) Avoletta v. State, supra, 152 Conn.App. 183. " Sovereign immunity rests on the principle and on the hazard that the subjection of the state and federal governments to private litigation might constitute a serious interference with the performance of their functions and with their control over their respective instrumentalities, funds and property." (Internal quotation marks omitted.) Miller v. Egan, supra, 314. Sovereign immunity " protects the state, not only from ultimate liability for alleged wrongs, but also from being required to litigate whether it is so liable." (Internal quotation marks omitted.) Vejseli v. Pasha, 282 Conn. 561, 569, 923 A.2d 688 (2007). " [T]he rejection of a colorable claim of sovereign immunity gives rise to an immediately appealable final judgment- that is, to protect against the threat of suit ..." Chadha v. Charlotte Hungerford Hospital, 272 Conn. 776, 787, 865 A.2d 1163 (2005).
" [T]o circumvent the strong presumption of sovereign immunity in an action for monetary damages, the burden is on the plaintiff to show that ... the legislature, either expressly or by force of a necessary implication, statutorily waived the state’s sovereign immunity ... In the absence of a statutory waiver of sovereign immunity, the plaintiff may not bring an action against the state for monetary damages without authorization from the claims commissioner to do so." (Citations omitted; emphasis added; internal quotation marks omitted.) Avoletta v. State, supra, 152 Conn.App. 183; see also Lagassey v. State, 268 Conn. 723, 732, 846 A.2d 831 (2004) (" [t]he ... commissioner, if he deems it just and equitable, may sanction suit against the state on any claim which, in his opinion, presents an issue of law or fact under which the state, were it a private person, could be liable" [internal quotation marks omitted] ); Chotkowski v. State, 240 Conn. 246, 270, 690 A.2d 368 (1997) (" [t]he sole purpose of § 4-160 ... is to remove the bar of sovereign immunity when the claims commissioner determines that it would be ‘just and equitable’ to permit a claimant to seek redress against the state" ).
Sections 4-141 through 4-165 do not, as the defendants claim, automatically waive the state’s immunity from liability and suit at the administrative level. Absent the commissioner’s determination that suit against the state is " just and equitable," there is no waiver of sovereign immunity. In the present case, the commissioner has twice stated that she lacks jurisdiction to hear the defendants’ claims because they were not filed within the statutorily prescribed time limit. See General Statutes § 4-148(a). There is plainly no authorization from the commissioner for the defendants to pursue their claims.
To the extent that the special act vacates the commissioner’s latest decision and authorizes the defendants to bring their claims before the commissioner, the state has standing to challenge the constitutionality of this act. See Kuehl, supra, 299 Conn. 814. The state has alleged that, because the issue of public purpose was already presented and litigated before the Superior and Appellate Courts, the administrative proceeding deprives the state of its sovereign right to immunity from suit and of its right not to litigate the defendants’ stale and untimely claims. These claimed injuries are not hypothetical. See id., 817 n.6 (" [T]he harm at issue is not being subjected to potential liability, but being obligated to defend the [stale] claim. Therefore, the claimed injury is not hypothetical ..." ).
Construing the allegations of the complaint in their most favorable light; see Conboy v. State, supra, 292 Conn. 651; the state has presented colorable claims of injury. Accordingly, the defendants’ motion to dismiss on the ground that the state has not established an injury is denied.
D
Lack of Ripeness for Adjudication
In the final section of their motion to dismiss, the defendants argue that the court lacks subject matter jurisdiction due to lack of ripeness for adjudication. Within this section the defendants make a number of arguments, including: adjudication for declaratory relief is premature; judicial estoppel precludes the claims; the alleged injury is hypothetical; the state has failed to exhaust its administrative remedies; and the court will become entangled in abstract disagreements.
At the outset, the defendants’ argument that the alleged injury is hypothetical was previously addressed and denied in the defendants’ prior argument that the state lacks standing. Further, it appears as though the defendant’s arguments that adjudication for declaratory relief is premature; and that the action prevents other branches of government from engaging in their normal process of lawmaking; are both permutations of the defendants’ ultimate argument that the state has failed to exhaust its administrative remedies. Accordingly, the court addresses those arguments together.
1
Failure to Exhaust Administrative Remedies
The defendants argue that the court lacks subject matter jurisdiction due to the state’s failure to exhaust its administrative remedies. Specifically, the defendants argue that the state was required to seek declaratory relief from the commissioner, pursuant to § 4-176. The defendants also argue that the state can obtain a remedy at the administrative level, and that exhaustion of such administrative remedy is required before the state can seek judicial relief.
As discussed previously regarding the defendants’ argument that the state has failed to join the commissioner as an interested party, the defendants have provided no authority that requires the state to comply with § § 4-175 and 4-176 when it is challenging the constitutionality of a special act passed by the General Assembly.
" 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." (Internal quotation marks omitted.) Levine v. Sterling, 300 Conn. 521, 528, 16 A.3d 664 (2011). " Because the exhaustion [of administrative remedies] doctrine implicates subject matter jurisdiction, [the court] must decide as a threshold matter whether that doctrine requires dismissal of the [plaintiff’s] claim." (Internal quotation marks omitted.) Id.
But see Johnson v. Rell, 119 Conn.App. 730, 733-34 n.4, 990 A.2d 354 (2010) (" prisoner’s alleged failure to exhaust administrative remedies properly is the focus of a motion to strike rather than a motion to dismiss, as it does not implicate the subject matter jurisdiction of the court" ).
" The doctrine of exhaustion of administrative remedies is well established in the jurisprudence of administrative law ... The doctrine provides that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted ... For example, when a statute provides for an adequate remedy, we have long adhered to the rule that, where a statutory right of appeal from an administrative decision exists, an aggrieved party may not bypass the statutory procedure and instead bring an independent action to test the very issue which the appeal was designed to test." (Citation omitted; internal quotation marks omitted.) Kuehl, supra, 299 Conn. 812.
" The [exhaustion] doctrine is ... like most judicial doctrines, subject to numerous exceptions ... [W]e have recognized such exceptions only infrequently and only for narrowly defined purposes ... such as when recourse to the administrative remedy would be futile or inadequate." Id., 813. " An administrative remedy is futile or inadequate if the agency lacks authority to grant the requested relief." Payne v. Fairfield Hills Hospital, 215 Conn. 675, 680 n.3, 578 A.2d 1025 (1990). " 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 ... The law does not require the doing of a useless thing." (Citations omitted; internal quotation marks omitted.) O & G Industries, Inc. v. Planning & Zoning Commission, 232 Conn. 419, 429, 655 A.2d 1121 (1995). " To determine whether a party properly may seek court intervention prior to the completion of administrative proceedings, we examine whether the court has been asked to address issues entrusted to the [commissioner] and whether the [commissioner] could issue appropriate relief." (Internal quotation marks omitted.) Kuehl, supra, 299 Conn. 814.
At issue in Kuehl was " the narrow question of whether a " respondent ... prior to the completion of proceedings before the [commissioner], may bring a declaratory judgment action in the Superior Court, challenging the constitutionality of the statute on which a claimant relies to confer jurisdiction on the commissioner." Id., 801-02. In Kuehl, the legislature had amended an existing statute " to create an exception to the statute of limitations in § 31-294c(a), in order to allow Kuehl ‘and others’ to refile her claim for survivor’s benefits." Id., 806. The plaintiff sought a declaratory judgment, arguing that the amendment was an unconstitutional public emolument, and the trial court agreed. Id., 807. On appeal, the defendants did not challenge the trial court’s determination that the amendment was an unconstitutional public emolument, but instead raised jurisdictional challenges. Id., 808. In determining whether the trial court had properly exercised subject matter jurisdiction, the Appellate Court noted that, because the trial court was tasked with deciding the constitutionality of the statute, it " was not asked to decide an issue that has been entrusted to the commissioner. It is well established that adjudication of the constitutionality of legislative enactments is beyond the jurisdiction of administrative agencies ... The commissioner, therefore, is expressly barred from addressing the question." (Citation omitted; emphasis in original; internal quotation marks omitted.) Id., 814.
Further, the court held that the commissioner could not issue appropriate relief. Id., 815. " [D]irect adjudication even of constitutional claims is not warranted when the relief sought by a litigant might conceivably have been obtained through an alternative [statutory] procedure ... which [the litigant] has chosen to ignore ... [W]e continue to limit any judicial bypass of even colorable constitutional claims to instances of demonstrable futility in pursuing an available administrative remedy." (Internal quotation marks omitted.) Id., 813; see also Coyle v. Commissioner of Revenue Services, 142 Conn.App. 198, 208-09, 69 A.3d 310 (2013) (" Where there is a statutory grant of authority that would allow an agency to award the relief sought without deciding a constitutional question, the futility exception will not apply, and a plaintiff will be required to exhaust her administrative remedies ... If, however, the only way to determine whether a plaintiff can obtain the relief that she seeks is through a resolution of the constitutional challenge, she need not exhaust her administrative remedies and the court does have jurisdiction to hear the claim." [Citations omitted.] ), appeal dismissed, 312 Conn. 282, 91 A.3d 902 (2014), cf. Stepney, LLC v. Town of Fairfield, 263 Conn. 558, 568, 821 A.2d 725 (2003) (holding that commissioner of public health could " render [an] ordinance unenforceable. Therefore, an administrative appeal in this case could have afforded the plaintiff the declaratory and injunctive relief it sought" ); Owner-Operators Independent Drivers Assn. of America v. State, 209 Conn. 679, 553 A.2d 1104 (1989) (" the commissioner ‘might conceivably’ have recognized some applicable illegality with regard to the statute which, even without a declaration of the statute’s unconstitutionality, would have led to an award of a refund" ); Coyle v. Commissioner of Revenue Services, supra, 212 (" plaintiff could have sought a hearing ... to seek a correction of the amount of the tax, penalty or interest fixed" [internal quotation marks omitted.] ).
The court in Kuehl noted that " [b]ecause the statute of limitations ... serves the purpose of securing finality and protecting against the enforcement of stale claims, the limitations period ... forms the basis of the plaintiff’s claim that it is entitled to protection from defending against Kuehl’s claim for benefits ... Of course, the only way to determine whether the plaintiff could obtain the relief it sought was to resolve the constitutional challenge, which the commissioner could not do." Kuehl, supra, 299 Conn. 814-15. Thus, the court held that " the present case falls under the futility exception to the exhaustion doctrine, and, accordingly, we conclude that the plaintiff was not required to proceed to the merits before the commissioner prior to bringing the present action." Id., 811-12.
Although the commissioner cannot decide issues of constitutionality, " [t]he declaratory judgment procedure in Connecticut as provided by § 52-29 of the General Statutes and [§ 17-54] of the Practice Book is peculiarly well adapted to the judicial determination of controversies concerning constitutional rights and, as in these cases, the constitutionality of state legislative or executive action." Horton v. Meskill, 172 Conn. 615, 626, 376 A.2d 359, 365 (1977). This is particularly true in the present case, where the General Assembly acted pursuant to § 4-148(b). " Notwithstanding a claimant’s failure to comply with the limitation period set forth in subsection (a), § 4-148(b) ... allows the General Assembly to pass a special act authorizing an untimely claim if it finds compelling equitable circumstances’ and ‘public purpose.’ Although § 4-148(b) provides that [s]uch finding shall not be subject to review by the Superior Court, special acts passed in this manner are subject to review nonetheless under the public emoluments clause contained in article first, § 1, of the state constitution." (Internal quotation marks omitted.) Lagassey v. State, supra, 268 Conn. 733. " Because an enactment must serve a valid public purpose in order to avoid the prohibition against the granting of exclusive public emoluments and privileges contained in article first, § 1, of the state constitution, the determination of whether an enactment serves such a purpose is necessarily one of constitutional magnitude. It is the court’s duty to ensure that legislative action falls within constitutional boundaries ... Consequently, the legislature cannot by mere fiat or finding, make ‘public’ a truly ‘private’ purpose ... Its findings and statements about what is or is not ‘public’ cannot be binding upon the court ... Accordingly, § 4-148(b) would be constitutionally infirm to the extent that it were construed to shield from judicial review a legislative determination that its enactment meets the requirements of article first, § 1, of our state constitution." (Citations omitted; internal quotation marks omitted.) Chotkowski v. State, supra, 240 Conn. 258-59.
In the present case, the state has asked the court to determine whether the special act is an unconstitutional public emolument. As in Kuehl, the state is " not required to proceed to the merits before the commissioner prior to bringing the present action" ; Kuehl, supra, 299 Conn. 812; because the commissioner does not have the authority to address the constitutional question. Id., 814. Further, the commissioner cannot grant the relief requested. As in Kuehl, the state’s alleged harms include protection from defending against stale claims, and such relief was contingent upon resolution of the constitutional challenge. Id., 815. Although the defendants submitted a lengthy reply brief attempting to distinguish Kuehl from the present case on this very point, the defendants fail to consider two important distinctions.
First, our Supreme Court precedent is clear that the courts may review special acts, which purport to authorize untimely claims against the state, for conformity with the public emoluments clause. The defendants argue that, in Kuehl, filing a timely claim was a prerequisite to jurisdiction of the Workers’ Compensation Commissioner, but that here, under the Claims Commissioner statute, § 4-148, filing a timely claim is not the sole prerequisite to jurisdiction of the Claims Commissioner. Thus, under that statute ... the General Assembly can authorize the presentation of untimely claims to the Claims Commissioner, as it did so here. Absent from the defendants’ analysis, however, is any reference to the appellate authority that permits judicial review of the General Assembly’s actions. See e.g.; Kinney v. State, 285 Conn. 700, 712, 941 A.2d 907 (2008) (" [section] 4-148(b) would be constitutionally infirm to the extent that it were construed to shield from judicial review a legislative determination that its enactment meets the requirements of article first, § 1, of our state constitution" [internal quotation marks omitted] ); Lagassey v. State, supra, 268 Conn. 733 (special acts passed pursuant to § 4-148(b) " are subject to review nonetheless under the public emoluments clause contained in article first, § 1, of the state constitution" ); Chotkowski v. State, supra, 240 Conn. 258 (" [the legislature’s] findings and statements about what is or is not ‘public’ cannot be binding upon the court" ); Merly v. State, 211 Conn. 199, 213, 558 A.2d 977 (1989) (" [w]here a special act has allowed a person named therein to bring a suit based upon a statutory cause of action that would otherwise be barred for failure to comply with a time limit specified in the statute, we have ordinarily been unable to discern any public purpose sufficient to sustain the enactment" ). Accordingly, the defendants’ argument that the timeliness issue " is settled" is an oversimplification, and disregards the court’s important role " to ensure that legislative action falls within constitutional boundaries." Chotkowski v. State, supra, 258.
Second, in the present case, the state has alleged an additional harm not at issue in Kuehl: the right to sovereign immunity from suit. If the special act is constitutionally sound and articulates a valid public purpose, it properly waives the state’s sovereign immunity. In the absence of either a statutory waiver or authorization from the commissioner, however, the state is entitled to immunity from suit in the administrative process. Again, such relief can only be granted upon resolution of the constitutional issue, which the commissioner cannot do. See Kuehl, supra, 299 Conn. 815. Only the court has the exclusive authority to determine whether a special act, which purports to authorize an untimely claim against the state, violates the public emoluments clause.
Accordingly, the defendants’ motion to dismiss for the state’s failure to exhaust administrative remedies is denied.
2
Judicial Estoppel
As for the defendants’ argument that judicial estoppel preludes the state’s claim, the court notes that judicial estoppel is not a proper ground for motion to dismiss. See Lester v. Smigelski, Superior Court, judicial district of New Haven, Docket No. CV- 08-5004283-S (April 7, 2009, Fischer, J.) (47 Conn.L.Rptr. 523, 525), citing Practice Book § 10-31(a) (" the portion of the defendant’s motion that seeks dismissal on the basis of the doctrine of judicial estoppel does not present a subject matter jurisdictional question" [footnote omitted] ).
Both parties cite to Assn. Resources, Inc. v. Wall, 298 Conn. 145, 2 A.3d 873 (2010) in support of their respective arguments. Although Assn. Resources, Inc. v. Wall did not squarely decide the issue, the court’s holding suggests that judicial estoppel does not implicate the court’s subject matter jurisdiction. In that case, the defendant appealed from the trial court’s denial of its motion to dismiss on grounds of standing and judicial estoppel. Id., 160. The Supreme Court addressed each of these arguments separately, noting at the outset that " the defendant’s standing arguments implicate our subject matter jurisdiction ..." (Emphasis added.) Id. After concluding that the trial court had properly denied the defendant’s motion to dismiss for lack of standing, the court then considered the judicial estoppel question. Id., 168. Whereas appellate review of a motion to dismiss is de novo; see Conboy v. State, supra, 292 Conn. 650; the court in Assn. Resources, Inc. v. Wall noted that " judicial estoppel is an equitable doctrine invoked by a court at its discretion," and therefore reviewed the trial court’s holding under an abuse of discretion standard. Assn. Resources, Inc. v. Wall, supra, 171. The court ultimately concluded that " the trial court did not abuse its discretion by declining to invoke the doctrine of judicial estoppel." Id., 172; see also Cimmino v. Marcoccia, Superior Court, judicial district of Fairfield, Docket No. CV-09-5023251-S (February 9, 2015, Sommer, J.) (" [Res judicata and judicial estoppel] are not issues of subject matter jurisdiction ... Regarding judicial estoppel, see [Assn. Resources, Inc. v. Wall, supra, 171] [addressing subject matter jurisdiction separately from judicial estoppel, stating that [b]ecause the rule [of judicial estoppel] is intended to prevent improper use of judicial machinery ... judicial estoppel is an equitable doctrine invoked by a court at its discretion ...’]" ). ---------
Moreover, even if judicial estoppel was appropriately addressed in a motion to dismiss, the defendants have not established the requisite elements. " [J]udicial estoppel prevents a party in a legal proceeding from taking a position contrary to a position the party has taken in an earlier proceeding ... Typically, judicial estoppel will apply if: 1) a party’s later position is clearly inconsistent with its earlier position; 2) the party’s former position has been adopted in some way by the court in the earlier proceeding; and 3) the party asserting the two positions would derive an unfair advantage against the party seeking estoppel." (Internal quotation marks omitted.) Barton v. Norwalk, 163 Conn.App. 190, 202-03, 135 A.3d 711 (2016), aff’d, 326 Conn. 139, 161 A.3d 1264 (2017). " [C]learly inconsistent positions are the crux of a judicial estoppel claim ..." Id., 204; see also Dougan v. Dougan, 301 Conn. 361, 375, 21 A.3d 791 (2011) (plaintiff took position clearly inconsistent with previous position when he had " asked the court to incorporate [an] agreement into the judgment of dissolution," and later asked the court to " refuse to enforce the provision" ). As mentioned previously, the state has, since 2007, consistently argued that the defendants’ claims are time barred and that the commissioner should not hear the merits of the defendants’ claims. The state now argues that the special act is substantively identical to the prior joint resolution, which the Appellate Court struck down as an unconstitutional public emolument. Filing the present action for declaratory relief only furthers the state’s earlier position. Accordingly, the defendants’ motion to dismiss due to judicial estoppel is denied.
3
The Court Will Become Entangled in Abstract Disagreements
As for the defendants’ final argument that the court will become entangled in abstract agreements, these arguments neither speak to the constitutionality of the special act nor to the merits of the defendants’ underlying claims, and are not appropriately addressed in the defendants’ motion to dismiss. " A court deciding a motion to dismiss must determine not the merits of the claim or even its legal sufficiency, but rather, whether the claim is one that the court has jurisdiction to hear and decide." (Internal quotation marks omitted.) Hinde v. Specialized Education of Connecticut, Inc., supra, 147 Conn.App. 740-41.
The court notes that, when reviewing the constitutionality of an act, the court’s role is " not to assess [the constitutionality of an act] in the light of what we think of the wisdom and discernment of the law-making body in the particular instance. Rather we are bound to approach the question from the standpoint of upholding the legislation as a valid enactment unless there is no reasonable ground upon which it can be sustained." (Internal quotation marks omitted.) Chotkowski v. State, supra, 240 Conn. 246. Whether the legislature appropriately waived the state’s sovereign immunity, and whether the Appellate Court’s holding in Avoletta v. State, supra, 152 Conn.App. 177, has any controlling effect on this case, cannot be decided on a motion to dismiss. The court does, however, have jurisdiction to decide those very issues.
CONCLUSION
For the foregoing reasons, the defendants’ motion to dismiss the state’s complaint for declaratory relief is denied.
" By contrast, we have consistently held that legislation seeking to remedy a procedural default for which the state is not responsible does not serve a public purpose and, accordingly, runs afoul of article first, § 1, of the state constitution ... Similarly, where a special act has allowed a person named therein to bring a suit based upon a statutory cause of action that would otherwise be barred for failure to comply with a time limit specified in the statute, we have ordinarily been unable to discern any public purpose sufficient to sustain the enactment ... " [The joint resolution] authorizes the plaintiff, and only the plaintiff, to commence a lawsuit against the state for his alleged injuries, as detailed in the claim presented to the Claims Commissioner. Notably absent in this case was a declaration that it served a public purpose, nor can we discern one. It merely provided the plaintiff with an exclusive and private benefit. No enactment creating a preference can withstand constitutional attack if the sole objective of the General Assembly is to grant personal gain or advantage to an individual ... Although we are mindful of the heavy burden assumed by those who challenge the constitutionality of legislative actions ... we conclude that the court properly determined that the resolution in the present case violated the state constitution’s prohibition against public emoluments ..." (Emphasis in original; internal quotation marks omitted.) Avoletta v. State, supra, 152 Conn.App 194-95, citing Morneau v. State, supra, 150 Conn.App. 261-62. The court then concluded that the joint resolution at issue in Morneau was substantively identical to the joint resolution at issue in Avoletta. See Avoletta v. State, supra, 152 Conn.App. 195. Accordingly, " [t]he holding of this court in Morneau that the resolution was an unconstitutional public emolument with respect to the plaintiff in that case therefore applies with equal force to the plaintiffs in this case." Id.
" (b) The state shall be barred from setting up the failure to comply with the provisions of sections 4-147 and 4-148 of the general statutes, from denying that notice of the claims was properly and timely given pursuant to sections 4-147 and 4-148 of the general statutes and from setting up the fact that the claims had previously been considered by the Claims Commissioner, by the General Assembly or in a judicial proceeding as defenses to such claims." Defs.’ Mem. Supp. Mot. to Dismiss, Ex. 4.